Boland

Carlin G. Smith brought this action to enforce rescission of a contract for the purchase of an automobile. Judgment was awarded in accordance with the prayer of the complaint, and defendants appeal. (After judgment there was a substitution of parties plaintiff by reason of an assignment made by plaintiff Carlin G. Smith to Boland.)

On June 12, 1912, plaintiff Smith negotiated with defendant Stanley W. Smith and C. F. Smith, since deceased, for the purchase of an automobile, and on that date paid a deposit of five hundred dollars. A written contract in the form of a memorandum order was drawn up and signed by the purchaser and the vendors. The automobile was not at the time in the hands of the vendors ready for delivery, but was to be shipped from the factory at an eastern point, and the written contract provided that the delivery was to be made “on or about out of first shipment of this model.” The signature of the plaintiff first appeared attached to the order, and over the signature of the vendors was the following clause: “We agree to fulfill all the terms and conditions of this order, subject to delay resulting from fires, strikes, action of elements, and other circumstances…