
    Frank E. Rountry, Appellant, v. William W. Hosp and Another, Respondents.
    Supreme Court, Appellate Term, First Department,
    February 9, 1928.
    Sales — complaint — complaint sets forth cause of action based on false representations and rescission and also on express contract to return purchase price.
    The plaintiff alleges that he purchased a motor truck from the defendant corporation upon the false representation that the defendant would procure work for the plaintiff, that such statements were false and plaintiff was not able to obtain work as represented, and that the defendant corporation thereafter agreed to repay the purchase price upon the return of the truck.
    The complaint states a cause of action based on false representations of a fact which induced the plaintiff to purchase the motor truck and its implied rescission of the contract by the return of the truck, and it also alleges a cause of action on an express agreement to cancel and to return the purchase price.
    
      Appeal by plaintiff from order dismissing complaint for insufficiency.
    
      George R. Simpson [Abraham C. Cohen of counsel], for the appellant.
    
      Benjamin Bernstein, for the respondent.
   Per Curiam.

The complaint alleges that plaintiff bought an automobile truck from the defendant corporation and that for the purpose of inducing the plaintiff to make the purchase the corporation represented that it was in a position to procure work for the plaintiff and the said truck ” for a certain length of time at a certain compensation and that the individual defendant similarly represented that “ he had applications on hand requiring the services of the plaintiff,” etc.; that the purchase was made in reliance on said statements; that they were false and that plaintiff was not able to obtain employment for the truck as represented; that plaintiff thereupon demanded from the defendant a return of the purchase price and some other disbursements and on the request of the defendants returned to them the truck and that defendants thereupon promised and agreed to repay the said sum of $1,605 to the plaintiff.”

The complaint seems to set out two causes of action, one of false representation of a fact upon which plaintiff was induced to make the purchase and its implied rescission by the return of the truck; and, second, an actual agreement of cancellation of the sale and an express promise of the defendants to return the purchase price.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendants to answer within six days after service of order entered hereon upon payment of said costs.

Bijur and Levy, JJ., concur.

Crain, J. (concurring).

I am of opinion that the complaint sets out a cause of action on an agreement of cancellation of the sale and an express promise to return the money paid on account of the purchase price.  