Jones v. Bay Cities Electric Co.

This is an action for the rescission of a contract and for damages for its breach. Defendants had judgment on motion for a nonsuit.

Exhibit “A,” referred to in the complaint, is a contract dated July 20, 1910, between the Bay Cities Company, first party, and plaintiff, second party, in which it is- recited that the Bay Cities Company has a contract with the Columbus Buggy Company, giving to the Bay Cities Company the exclusive right to sell Columbus electric automobiles in certain territory in California, including San Mateo County and the city and county of San Francisco; that under said contract the Bay Cities Company is authorized to contract with other parties giving to them the exclusive right to sell said automobiles in portions of said territory. “Now therefore, in consideration of one dollar to each of the parties thereto (hereto ?) paid by the other party, receipt of which is hereby acknowledged, and in further consideration of the benefits and advantages moving from each of the parties hereto to the other, it is hereby mutually agreed”: 1. Grants to second party the exclusive right to sell in the counties named above; 2. First party is to deliver automobiles to second party, or to any purchaser, upon payment by second party the cash price or in installments as may be agreed upon; delivery to be within a reasonable time after notice. 3. Second party is to have a twenty per cent discount on regular factory list price, in con.sideration for sales made by him. 4. Second party is not to sell automobiles in territory other than as above. 5-, Second party not to sell automobiles that may conflict in style or in price with the Columbus machines, except where taken in exchange. 6. Price of machine as per list f. o. b. Columbus. 7. Delivery subject .to strikes and unavoidable delays. 8. Contract expires November 1, 1911, but “may be terminated at any time.for good, reasonable and sufficient cause, or may be terminated otherwise by the second party giving to the first-party written notice to that effect, such termination being

Exhibit “B” is a bill of sale of the same date, July 20, 1910, between the same parties, by which the Bay Cities Company conveyed to plaintiff certain personal property, as per schedule attached, including “1 model 1000 Columbus electric automobile. factory No. 1326,” and also a large number of articles used in conducting the garage business and situated at the store on Van Ness Avenue as stated in the complaint, the consideration mentioned being ten dollars.

General and special demurrers were overruled and defendants answered: Admit the execution of the two contracts set out in the complaint but deny that the assignment of right therein to defendant United Company and deny that the United Company assumed or undertook to carry out said contract exhibit “A” or any of its obligations and deny that said company conducted any business with plaintiff; admit the execution of exhibit “B” but deny that “it was contemporaneous or in conjunction with the alleged contract exhibit ‘A’ ” or was dependent thereon, or that it was part of the consideration for said contract exhibit “A,” but was an independent and separate transaction “in no way connected with” contract exhibit “A”; deny the averments of the complaint respecting the various payments and expenses therein alleged to have been made and incurred by plaintiff; deny that plaintiff has faithfully or at all kept and performed the covenants of said agreement exhibit “A” or that he has been prevented from so doing by any breach or default of defendants; and in this connection aver “that plaintiff, ever since the 20th day of July, 1910, has neglected and still neglects to perform said alleged contract in this, that said Columbus electric automobiles are machines readily sold by the use of reasonable effort, and that plaintiff has failed and neglected to use such effort and that in the period after July 20, 1910, plaintiff has sold but two machines whereas by reasonable effort he could have sold ten”; deny that, on April 5, 1911, or at any time,

The grounds of the nonsuit were the following: 1. That exhibit “B,” the bill of sale, is a contract fully executed and has so stood for nine months and rescission cannot be had of an executed contract; 2. Plaintiff is not entitled to rescind without returning before suit all that he has received under it; 3. The proof does not correspond with the allegations of the complaint; 4. The testimony does not show that plaintiff complied with the contract between himself and defendants; 5. It does not appear that plaintiff has made a sufficient tender to defendants to entitle him to rescind.

There is evidence tending to show: That the two contracts, exhibits'“A” and “B,” were parts of the same transaction and that the consideration paid ($2,000.00) entered into both. When these contracts were made the Bay Cities Company was conducting a garage business and at the same time was engaged in selling electric automobiles, having its principal place of business at Oakland with what might be called a branch at San Francisco on Van Ness Avenue; the garage business here conducted consisted of receiving, caring for, and repairing electric automobiles; connected with it there was kept what was called a demonstration car whose use was to explain the merits of the Columbus car and promote its sale; this machine was not necessary to the other branch of the business purchased by plaintiff, but was necessary if not indispensable to the successful management of the sales department of the business. Plaintiff testified that he paid the two thousand dollars “for the agency of the sale of the Columbus automobiles in San Francisco and San Mateo counties, ’ ’ but it also appeared from his testimony that this sum was to include the consideration paid for the garage business and equipment. The bill of sale enumerates all the articles but no value is car

There was evidence sufficient to warrant the inference that the United Company, upon its organization, succeeded to the rights of the Bay Cities Company and, so far as the duty to perform the obligations of the Bay Cities Company in respect of the contract exhibit “A” is concerned, plaintiff had the right to look to the United Company. The premises on Van Ness Avenue were, at the time of the sale, occupied by the Bay Cities Company, and, by agreement with the agent, plaintiff went into possession and thereafter paid the rentals. Plaintiff testified that after serving notice of rescission he continued to operate the garage and to demonstrate the Columbus automobile and was, at the time of the trial, September 28, 1911, in possession of the premises and carrying on the garage business the same as he had previously been doing. The evidence was that the garage business was earning about one hundred dollars per month -when plaintiff bought it and continued, to the day of the trial, to bring in about that amount monthly. Plaintiff, however, sold no more automobiles and there is no evidence or averment in the complaint that any more were sold or could have been sold, in the counties named, after April, 1911. In his notice of rescission plaintiff offered to deliver possession of the personal property embraced in contract “B” at the Van Ness Avenue premises and that he would hold the property subject to defendants’ order and at their expense until delivery; he also made demand for the two thousand dollars paid defendants as consideration; also demanded reimbursement for expenses in advertising and exhibiting said

Appellant contends that the sale of the garage business and equipment had no relation to the agency contract and that whatever he did in operating the garage “was a matter entirely outside of the scope of the agency contract, and wholly personal to the plaintiff.” Defendants contend, on the other hand, that “the purchase of the garage business was the main contract and the agency only a side incident, valued by the Bay Cities Electric Company at nothing. ’ ’

Plaintiff’s conduct in seeking to rescind was inconsistent with his contention, for, if the garage business was a matter entirely distinct from the agency, Why did he think it necessary to offer to return the property conveyed by that contract in his attempted rescission ? There must have been some relation between the two contracts. The testimony of plaintiff showed very clearly that the two thousand dollars paid by him was the consideration entering into both contracts and that they were parts of but one transaction.

It is, perhaps, unnecessary to consider the relative value of the two contracts. The evidence was that the garage, during the nine months up to April 5, 1911, was earning about one hundred dollars per month and in that time plaintiff’s commission for the sale of automobiles, he states in his notice, amounted to $447, net. But whatever the relative earnings were under the two contracts, if defendants’ breach was such as to justify rescission and the broken covenant could not be readily compensated in damages, or if defendants’ default made performance by plaintiff impossible, it was plaintiff’s duty first to place defendants “pretty nearly in the position” they were in “before the contract was entered into.” (Fountain v. Semi-Tropic Co., 99 Cal. 677 , [ 34 Pac. 497 ].) Where a party cannot or does not restore the other party to the- condition he would have been in but for the contract, rescission

It seems to us that the facts present a case where full compensation can be had in an action for damages. But if this be not true, we are of the opinion that the evidence fails to show that plaintiff offered to or in fact could restore defendants to the same or “pretty nearly the position” they were in before the contracts were entered into. His offer was to return the articles scheduled in contract exhibit “B,” making no allowance for deterioration and loss in the nine months ’ use which, as to the automobile, not to speak of other articles, must have been considerable, and plaintiff was not able to testify that he still had in his possession all the articles. His offer as to the $447 commissions from the agency was to credit the net amount (not the full amount) on the damages, payment of which he demanded in his notice of rescission. He offered “to deliver up possession of the personal property at the Van Ness Avenue premises, but did not offer to restore the possession of the premises to defendants as tenants. He made no offer to account to defendants for the earnings of the garage while at the same time demanding payment for his time, expenses, and rentals of the premises occupied by him. Regarding, as we do, both contracts as one transaction, plaintiff’s duty was to make full restoration of everything of value received by him under both contracts. It was not sufficient to offer to return the personal property received by him. Plaintiff testified that he purchased the good will of the business, and, while it may be that such element of the contract was incapable of restoration and need not to have been restored, it lends some force to defendants’ contention that it was impossible for plaintiff to return a running business after plaintiff had retained it and carried it on for nine months. Then, too, there is reason in defendants’ contention that plaintiff did not in fact rescind the contracts because he continued the garage -business and was engaged in it at the time of the trial and also, as he testified, he continued to solicit sales of the Columbus electric automobile. It was not necessary, for the preservation of the property, that this should have been done. The'evidence was that the property could have been stored at a small cost.

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.