Nunziato

The plaintiff commenced this action to rescind a contract, by the terms of which he agreed to purchase and the defendant agreed to sell certain machinery used in the manufacture of macaroni. The defendant denied the allegations of the amended complaint upon which the rescission of the contract was based, and by a cross-complaint set up two causes of action, one for the recovery of $4,500 for goods, wares and merchandise alleged to have been purchased by plaintiff from the defendant, and one to recover the sum of $1500 alleged to be due him for labor and materials furnished to plaintiff within two years last past. The plaintiff denied the allegations of the cross-complaint, and as a special defense set up the same facts alleged in the original complaint for a rescission of the contract. The court made findings of fact and conclusions of law, and entered its judgment that the plaintiff take nothing by his complaint, that the defendant take nothing by his cross-complaint, and that neither party was entitled to his costs. The defendant appeals from that portion of the judgment which provides "that plaintiff and cross-defendant is not indebted to defendant W.I. Prout, that defendant…

Appellant, in his petition for a rehearing insisting that the trial court should have either entered judgment in favor of appellant for the sum of $4,500 alleged to he the unpaid portion on the contract involved in this action, or should have entered judgment for damages in favor of the plaintiff, overlooks the fact that under the contract involved in this action, after the sum of $3,000 was paid thereon, the remainder of the purchase price did not become due and payable until the machinery in question had been installed and placed in a satisfactory working condition.

Finding No. 2 of the trial court is to the effect that the machinery just referred to, to wit, two macaroni presses, did not function satisfactorily when installed, and that the appellant has never put said presses on a satisfactory working basis.

This being simply an appeal upon the judgment-roll, it must be assumed that the finding of the trial court is amply supported by the testimony. Under such circumstances, the remainder of the purchase price mentioned in the contract has not become due and payable, and will not become due and payable until the presses have been put in the working condition called for by the…

The plaintiff commenced this action to rescind a contract, by the terms of which he agreed to purchase and the defendant agreed to sell certain machinery used in the manufacture of macaroni. The defendant denied the allegations of the amended complaint upon which the rescission of the contract was based, and by a cross-complaint set up two causes of action, one for the recovery of $4,500 for goods, wares and merchandise alleged to have been purchased by plaintiff from the defendant, and one to recover the sum of $1500 alleged to be due him for labor and materials furnished to plaintiff within two years last past. The plaintiff denied the allegations of the cross-complaint, and as a special defense set up the same facts alleged in the original complaint for a rescission of the contract. The court made findings of fact and conclusions of law, and entered its judgment that the plaintiff take nothing by his complaint, that the defendant take nothing by his cross-complaint, and that neither party was entitled to his costs. The defendant appeals from that portion of the judgment which provides “that plaintiff and cross-defendant is not indebted to defendant W. I. Prout, that defendant…