Smith v. F. L. Moore Motor Truck Co.

Appeal from a judgment entered in favor of plaintiff.

The action was brought to enforce rescission of a contract for the purchase of an automobile truck. The making of the contract for the purchase of the truck and the terms thereof were not disputed by any evidence offered on either side. Plaintiff, together with T. J. Smith, his son, arranged for the purchase of a heavy truck from appellant Moore Motor Truck Company for a price in excess of four thousand dollars. As part payment on the purchase price, the Smiths turned in an old truck at the agreed value of one thousand four hundred dollars, paid three hundred dollars in cash and gave notes for the balance of the purchase price. The truck was being manufactured, and when ready was taken out for use upon several consecutive days, after which it was returned to the Moore Company and later sold by it. The old truck received from the Smiths was also sold by the same company. About the facts just recited there was no dispute. The disputed point in the case, as argued on the appeal, is whether there was a mutual rescission or whether the Moore Company, to the obligations of which the Pacific Metal Products Company afterward…