
    No. 672
    ZIMMERMAN v. MURPHY
    Ohio Appeals, 9th District, Summit County
    No. 685.
    Decided June 29, 1923
    This opinion has not been published except in Abstract
    47. AUTOMOBILES.
    Rescission of statements amou-.ting to false representation — Erroneous charge to jury in not submitting question as to representations complained^®
    Attorneys — J. Taylor, for Zimmerman; May ¿ May, for Murphy.
   FUNK, J.

Epitomized Opinion

Murphy purchased of Zimmerman an AU-American one-ton truck for $2,695, but Murphy traded ir his Elcar touring car at $900’ and gave his cognovil note for $1,795, payable^ in monthly installment! beginning- March 10, 1921. The evidence disclosec that Murhpy examined the truck and considered thf deal for several days before consummating it. He operated the truck about one month, during whicl time he had it at Zimmerman’s garage for mino: repairs about four times. About one month aftei the purchase, in an attempt to rescind the contract Murphy returned the truck to Zimmerman, c'aiming it -not to be as represented and that Zimmerman induced him to purchase the car by false and iraudu lent representations and demanded the return of hi: Elcar, which Zimmerman -refused to do. Zimmermai had judgment entered on the cognovite note. Mur phy had this judgment vacated and filed an answe: and cross-petition setting up the allegations of fals and fraudulent representations. The court in hi: charge to the jury assumled that the statementi^k tilled to by Murphy were such as would constHH false representations warranting the rescission® the contract. The court charged the jury that f they iound for Murphy, his damages would be th< value of the car at the time he made the demand fo: its return, less the repairs put on by Zimmerman In reversing the judgment for Murphy the Court o Appeals held:

1. The court erred in not instructing the jury a to what are material false representations and in no submitting to the jury the question of whether or no the representations comp’ained of were material am intended or calculated to deceive and defraud. 77 Of 468; 32 O. C. A. 369.

2. As to the measure of damages the true rule i that Murphy would be entitled to the value of th car at the time of the conversion as near as sue! value could be estimated from the condition the ca was in at the time it was received by Zimmermai without any enhancement in value by reason of re pairs put upon it by the latter.

3. The court failed to charge that he who wouL rescind the contract must offer to do so promptly o: discovering the facts that will justify a rescissioi and while he is able to place the opposite party ii statu quo. This was error.  