Whitson v. Pacific Nash Motor Co. , 37 Idaho 204 ( 1923 )

DUNN, J.

— In this case respondents set up two causes of action: The first for the return of the purchase price of a Nash truck, pursuant to an attempted rescission of the sale contract; and second, for damages to their business as sheep-raisers in the sum of $1,000 by reason of the failure of said truck to do satisfactory work. The first cause of action is based upon the claim that appellant sold the truck to respondents and “guaranteed the said truck to be in good working order, free from any defects and capable of performing the work for which plaintiffs desired the same.”

At the opening of the trial appellant moved the court to require respondents to elect upon which cause of action they would proceed, on the ground that said causes were so inconsistent that both could not be maintained in the same action. This motion was denied. At the close of respondents’ case appellant moved for a nonsuit, which the court denied. After submitting its testimony in support of its defense appellant moved the court for a directed verdict fin its favor. This motion the court also denied.

The court erred in denying motion to require respondents to elect. If they were entitled to maintain an action for the recovery of the purchase price, they could not at the same time maintain an action for damages to their business by reason of the defects in the truck, for by claiming such damages they affirmed the contract of sale. (Murphy v. Russell & Co., 8 Ida. 133, 67 Pac. 421.)

There was a total failure of proof of a sale of the truck by appellant to respondents. All the evidence upon that point showed conclusively a sale by one John W. Morton to respondents. Respondents offered in evidence in support of their claim the written contract between appellant and John W. Morton, which was simply an agreement to give Morton the exclusive right to purchase Nash automobiles and trucks and sell them in certain designated territory within this state. This contract expressly denied any authority whatever to Morton to act as agent for appellant, in the following language:

“That the second party is not authorized or empowered to act as agent for first party; or for The Nash Motors Company; nor to transact business, incur obligations, or« bill goods in their name, or for their account; nor on their behalf to make any promise, warranty or representation with respect to goods or any other matter; and that these parties shall not be bound by the acts or conduct of the second party. ’ ’

Neither this contract nor any evidence offered by respondents showed any authority upon the part of Morton to make for appellant the guaranties set out in the complaint, and there is no evidence whatever that Morton made such guaranties or attempted to make' them. In this situation the trial court should have held that there was no evidence to support the claim of respondents and should have granted the nonsuit. Not having done so, it should have directed a verdict for appellant at the close of the case.

The evidence also shows that after the attempted rescission of the contract by delivering the truck to Morton, a mechanic in the employ of appellant stopped at Mountain Home and put the truck in condition to give satisfactory service, and that respondents tried it and were willing to accept the return of it provided appellant would pay the costs and attorney fees that had been incurred in bringing this action. Even if a sale by appellant and the contract of guaranty alleged had been satisfactorily shown, it seems to us exceedingly doubtful whether this action could be maintained in the face of this admitted fact.

It is clear, however, from the record that respondents have no cause of action against appellant. The judgment is therefore reversed, and the trial court directed to dismiss the action. Costs to appellant.

Budge, C. J., and Wm. E. Bee, J., concur.