Golner v. Wood , 1923 Ohio Misc. LEXIS 1901 ( 1923 )

RICHARDS, J.

Epitomized Opinion

This was an action for fraudulent misrepresentation and breach of warranty. In 1920 Wood purchased from Golner three trucks at the agreed price ■ of $4,000 each. After Wood had used the trucks for a while, he found that they were defective and that it was necessary to continually make extensive repairs. Although Wood knew of this condition he did not immediately rescind the sale and return the trucks, but kept them over a period of several months, replying on Golner’s repeated promises to put the trucks in good condition. At the time of the discovery of the defects, the buyer had made many payments on the trucks. Finally Wood returned the trucks and sued for fraudulent misrepresentation and breach of warranty. The buyer claimed that Golner had warranted the trucks to be all rigth, but Golner testified that no such warranty was made. The jury found for Wood to the extent of $4,120. Golner prosecuted error, claiming that the verdict of the jury was against the weight of evidence, and that Wood waived his right to return the trucks by his delay. Held:

1. As the parties are in direct conflict as to what occurred at the time of the return of the trucks, as_ well as at the time of the making of the sale, this^ court cannot say that the verdict is manifestly against the weight of evidence.

2. Inasmuch as Wood’s delay was caused by the seller’s repeated promises, the buyer did not lose his right to rescind the contract and return the trucks.