Pendell

The only issue on this, a second appeal from a judgment had in the Superior Court of the county of San Bernardino is as to the amount, if any, the appellant is entitled to recover, on a rescission by the defendant, the vendee under a conditional contract of purchase and sale of an automobile truck, for benefits received by the vendee from use of the truck while in his possession.

The action was brought by the vendor, as the plaintiff, to recover from" vendee, as defendant, the unpaid balance of the agreed purchase price. The defendant, after notice of rescission sought by cross-complaint a rescission of the contract and recovery of installments paid thereunder. Plaintiff, by way "of answer to the cross-complaint, pleaded as set-off to any recovery that might be had by the defendant, the value to vendee of the use of the truck.

Judgment was for defendant on the cross-complaint, granting rescission, and recovery of installments paid, and for costs, but no finding was made on the issue raised for a set-off in favor of plaintiff, for vendee’s use of the truck.

On appeal by plaintiff to the Second District Court of Appeal the judgment was reversed for failure of the trial court to…