Opinion
No. 42518.
June 23, 1934.
SALES: Rescission of Contract — Evidence — Sufficiency. Evidence held quite conclusively to show that a contract of sale had not been rescinded.
Appeal from Sioux City Municipal Court. — RALPH C. PRICHARD, Judge.
This is an action at law upon a purported oral contract. The defendant denied that the contract was oral and averred that it was in writing. The evidence disclosed that the contract was in writing and not oral. Over the objections of the defendant, the trial court permitted the plaintiff to introduce oral evidence inconsistent with the writing. The court also found for the plaintiff and entered judgment accordingly. The defendant has appealed. — Reversed.
Clem Miller, for appellant.
A.C. Hatt and R.A. Oliver, for appellee.
The contract in dispute was one for the purchase and sale of an Olds automobile. The defendant was an automobile dealer. Plaintiff and defendant had negotiations proposing the purchase by the plaintiff from the defendant of a new automobile. The plaintiff was the owner of a used Ford car, which he proposed to turn in in the trade. The listed price of the Ford car was $175. The plaintiff delivered the Ford car. He was not ready to take immediate delivery of the new car. He pleaded in his petition that he had later canceled his order. He sued the defendant for the value of his Ford car thus delivered. The evidence failed to show that he had ever accomplished a cancellation of his order. Under the contract he had no right of cancellation except by agreement of the defendant. He had requested that the order be canceled, but the defendant had not assented thereto. Long after the time when the plaintiff claims to have canceled his order, he wrote a letter on the subject to the defendant. This was on May 18, 1930. The letter was as follows:
"On August 8th, 1929, I traded in my Model T Ford Tudor on a Oldsmobile at Soo City at an allowance of $275.00 with the understanding I could take out the Oldsmobile this spring. In last fall's stock crash I met with disastrous results. Now I have to send one of my boys away for his health — and am in tough shape financially. I will not be able to purchase a car this year and maybe not next year. I asked Mr. Smith some time ago to cancel my order and refund to me what I had coming and he said that you would not do it as the deal was bona-fide and must go thru. That part of it is understood. We in our business also try to make a deal stick when possible and I do not wonder at the stand you took. In this case, however, I feel that under the circumstances you should and will cancel the order and instruct Smith — at Soo City to cancel my order and refund my credit. Ford sold for $175.00 less 20% = $140.00, plus 6% Int. August 8 to date = approx. $7.00, total due me $147.00.
"Please give this your prompt attention as must raise as much cash as possible at once."
Taking the facts precisely as they are related in said letter, it is plain that the plaintiff had not accomplished a cancellation. What his rights may be notwithstanding, we will not undertake to declare. The oral evidence contradictory to the writing was not admissible. The suit was not properly predicated upon an oral contract. The suit also was premature.
The judgment below must accordingly be reversed.
All Justices concur.