
    Louis Smadback et al., Appellants, v. William F. Wolffe, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Sales — Caveat emptor — Value of the use of a bicycle.
    Where a person takes a bicycle under an agreement, which may be regarded either as a lease or as a conditional sale, but by the terms of which he is bound to keep the machine in repair, and no warranty is given nor any representations made, at the time of delivery as to- its condition, and there is no proof of fraud, the doctrine of caveat emptor applies-and the owners of the machine are entitled to" recover the agreed value of its use, either as for unpaid rent or as for unpaid purchase money. '
    "Appeal by, plaintffs from judgment of the Seventh District •Court.' .
    E. L. Kalish, for appellants.
    E. A. Sumner, for respondent.
   McAdam, J.

On June 2, 1896, the defendant signed an agreement reciting that he had hired and received, from the Columbia Trading Concern (the name under which the" .plaintiffs did business) one “ Chieftain” bicycle, Fío. 528, with the appurtenances “All in •good order ” of the.value of $50, which he agreed to-use with care and “ keep in good order; ” for which use he agreed to then pay $10 rent for the first month, and thereafter for the period of four months, Tent at the rate of $10 a month in advance, the bicycle to become the •defendant’s property on full payment of the .rent at the time specified.

The defendant paid $28 on the rent in three installments, the last •payment being made as late as October 8, 1896, after the defendant 'had complained of certain defects in the machine;

The action was,to recover $22, the balance due. The defense -was “ general denial and counterclaim of $28; ” but the nature or ■particulars of the counterclaim were not given. .

It appeared on the trial that the defendant had been in the bicycle business for three years, and was an expert wheelman, with a thorough knowledge of bicycles; that he had possession of this par-tieular machine for four months prior to the leasing thereof to him, :and presumably knew more about its condition at the time than the plaintiffs. Ho representations were made by the plaintiffs respecting the condition of the bicycle; no warranty was given; and there is neither allegation nor proof of any fraud or deception on the part of the plaintiffs. The property remained in the defendant’s possession during the entire term of the lease and up to' and at the time of the trial, which took place January 17, 1897.

The plaintiffs apparently established a good cause of action for the balance of rent due; yet the justice found in favor of the defendant and awarded him a judgment against the plaintiffs for $20, the wheel to be returned to the plaintiffs. We know of no legal principle upon which this recovery can be sustained.

It seems that the defendant had made a profit of about $8 by letting out the wheel, and the justice evidently awarded the defendant the amount of his counterclaim, less this $8, as upon rescission of the contract, holding that the plaintiffs were entitled to nothing for the use of the wheel.

There was no rescission of the contract. Hor was there anything in the contract or the proofs which authorized a rescission. The bicycle was not delivered on trial or approval, or even with warranty; and as there was no fraud there was nothing which authorized a return of the cháttel. Voorhees v. Earl, 2 Hill, 288; Cary v. Gruman, 4 id. 625.

The defendant testified to an offer to return the machine to ¥r. Cohen, the plaintiff’s collector; but there is no proof that Cohen had any authority to accept such an offer for the plaintiffs. In any event he refused to accept the return, and that is all that was ever done in that direction.

Whether the agreement is to be regarded as a lease or a conditional sale of the bicycle the doctrine of caveat emptor controlled (Broom’s Max. 746, 747) and there appears no legal reason why the , plaintiffs should not have recovered the unpaid rent or purchase money.

The fact that the bicycle got.out of condition furnished no defense. The burden of keeping it in repair was cast upon the defendant by the express terms of the contract, and he was bound to keep it in order.

. The judgment must be reversed and a new trial Ordered, with cost to the appellants to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.  