Mettler v. Vance

This is an appeal by defendants from a judgment rendered in favor of plaintiff, and from an order denying their motion for a new trial.

As alleged in the complaint, plaintiff and defendants, on October 4, 1912, entered into a written contract whereby the latter agreed to sell and deliver to plaintiff, within thirty days from said date, an automobile described therein as a Model No. 22, 40 h. p., Marquette roadster, the agreed price of which, with extra equipment, was fixed at $3,223.50, upon which price defendants allowed plaintiff the sum ‘ ‘ of $723.50 for advertising,” and seven hundred dollars for a Wescott automobile owned by him and which he then and there transferred and delivered to defendants, and also paid them one hundred dollars in cash, all of which sums were by defendants acknowledged as being received and applied upon the purchase price of the Marquette roadster sold and agreed to

While inartificially drawn, we are of opinion the complaint, the substance of which is stated, was sufficient as against the general demurrer interposed by defendants. The result of defendants’ refusal to deliver the car in accordance with the contract constituted a failure of the consideration upon which plaintiff delivered the Wescott car to them. (Civ. Code, sec. 1689, subd. 2.) Moreover, a rescission on the part of defendants was implied by their refusal to comply with the contract, in which plaintiff acquiesced, thus effecting a rescission by consent. (Cromwell v. Wilkinson, 18 Ind. 365 .) Hence, the parties stood toward each other as though no contract existed, and defendants being in possession of plaintiff’s property, to which they had no right or title, and refusing to return and redeliver the same, he was entitled to maintain an action therefor.

Appellants devote a large part of their brief to a discussion as to whether or not, as found by the court, time was the essence of the contract, without which they claim it could not be rescinded. According to our view of the complaint, as stated, this question becomes unimportant, for “neither at law nor in equity is a contracting party excused from performing his contract within the time agreed upon, further than that in certain contracts failure to perform strictly according to contract, as to time, does not authorize the other party to rescind.” (American Type etc. Co. v. Packer, 130 Cal. 459 , [ 62 Pac. 744 ].) Strictly speaking, the right of plaintiff to rescind depends not upon the question as to whether or not time was mentioned in the contract as being the essence thereof, but whether defendants’ failure to per

The nature of the contract was such that damage due to delay in the performance thereof, so far as it affected plaintiff, was not capable of ascertainment (Civ. Code, sec. 1492), and hence defendants’ offer of performance at a later date, and after the commencement of this suit, thus disregarding the question of time found by the court to be a substantial part of the contract, imposed no duty upon plaintiff to accept the tardy offer, but left him free to pursue his remedy by rescinding the contract and recovering the property, or the value thereof, which he had transferred to defendants on account of said purchase.

The judgment and order are affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 19, 1916.