
    Alfred B. Lindberg vs. E. J. Beaver
    No. 90787.
    February 28, 1935.
    Attorney for plaintiff: Charles Z. Alexander.
    Attorney for defendant: Frank F. Pinkos, Esq.
   FROST, J.

Heard on defendant’s motion for new trial after verdict for plaintiff in the sum of $120.00.

This is an action of deceit in which the plaintiff seeks to recover damages because of representations made to him in connection with the sale of an automobile, which representations, as he says, were false. Plaintiff claimed to have purchased a 1927 Nash roadster. There was testimony from which a jury might fairly find that the machine selected by the -plaintiff and which proved to be a 1926 car, was represented to him to be a 1927 machine.

A further question in the ease is: Did the plaintiff elect to keep the cal- or did he rescind the contract?

The circumstances were somewhat unusual but the Court thinks the jury could reasonably find from the evidence that, as soon as the difference in years was discovered, plaintiff made known to the defendant his determination not to keep the car. The latter declined to take the car 'back and return the money paid but said that if payments were not kept up, the car would 'be reclaimed. No further payments were made by Lindberg and the automobile was subsequently repossessed by the finance company.

The jury having decided that Lind-berg had rescinded the contract, could find under the instructions of the Court that Lindberg was entitled to a return of the money paid by him.

In the opinion of the Court, the verdict is not against the evidence and. it does substantial justice 'between the parties.

Defendant’s motion for a new trial is denied.  