
    BUCANNAN v. RAYMOND.
    Fraud — Sales—Rescission—Breach oe Warranty — Remedy.
    An action for fraud rather than for breach of warranty is the proper remedy where the evidence shows that defendant falsely, although innocently, represented, in the sale of a tractor, that it was better than a new one, and that it was in perfect condition.
    On exclusiveness of remedy for breach of warranty provided in contract of sale of machinery, see note in 50 L. R. A. (N. S.) 753 et seq.
    
    Error to Lenawee; Hart (Burton L.), J.
    Submitted June 15, 1923.
    (Docket No. 46.)
    Decided October 1, 1923.
    Case by Jerome Bucannan against S. W. Raymond, doing business as S. W. Raymond Auto Sales, for fraud in the sale of a tractor. Judgment for plaintiff. Defendant brings error.
    Affirmed.
    
      J. N. Sampson, for appellant.
    
      Baldwin & Alexander, for appellee.
   Clark, J.

Plaintiff returned to defendant’s place of business a tractor and equipment, and, claiming rescission for fraud in the contract of sale, sued to recover the amount he had paid, and had verdict and judgment.

Defendant and appellant’s position on error is that there was no evidence of fraud, that he should have had a' directed verdict, and that plaintiff’s remedy, if any, is an action for breach of warranty. Defendant stresses certain claimed warranties and overlooks, we think, representations which plaintiff insists induced him to purchase. The tractor in question had been used. Defendant, a dealer, had it and a new tractor in Ms place of business. There was evidence that defendant represented to plaintiff that the tractor in question was better than a new one, that the use of it had merely “limbered it up,” and that it was in perfect running condition. There was evidence tending to show that these representations, though perhaps innocently made, were in fact false, that the tractor was defective, not in good running order, and that defendant’s several attempts to correct the defects were ineffectual. This evidence was not addressed to warranties under a valid contract but challenged for fraud the very existence of a contract. If the facts are with plaintiff, and the jury so found, he had the right to rescind and to recover back. We have considered all questions presented and find no reversible error.

Judgment affirmed.

Wiest, C. J., and Fellows, McDonald, Sharpe, Moore, and Steere, JJ., concurred. Bird, J., did not sit.  