COTE v. SHAW, 125 Me. 514 (1926)

132 A. 425

ERNEST COTE vs. CLIFTON R. SHAW.

Supreme Judicial Court of Maine. Kennebec County.
Decided March 12, 1926.

An action to recover money paid, or its equivalent, on account of the purchase price of an automobile, the contract of sale being alleged to have been fraudulent and upon this ground rescinded, and the car returned to the vendor and accepted by him.

After the evidence of the plaintiff was in, counsel for the defendant requested that a verdict be directed for the defendant on the ground

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that there was not sufficient evidence of fraud to go to the jury. The motion was granted, and the case is before this court on exceptions to this ruling.

One of the allegations of fraud was that the car was represented to be one of the 1925 models, and that its list price was $2300 delivered at Augusta. There was also an allegation of other representations which was alleged to be fraudulent, but whether they related to its condition does not appear.

By admission it was agreed that the car was not one of the 1925 models, and the evidence of the plaintiff was that its list price was $2,155.00 and not $2300.00. There was evidence of its defective condition.

But in addition to this the plaintiff’s testimony would have warranted the jury in finding that the contract of sale had been rescinded and the car returned and accepted by the defendant. It also appeared from the uncontradicted testimony of the plaintiff that the defendant, though he accepted the car returned to him, refused to return any part of the consideration paid to him.

Upon the evidence, a directed verdict for the defendant was not warranted as a matter of law. Exceptions sustained.

Pattangall, Locke Perkins, for plaintiff.

Burleigh Martin and Benedict F. Maher, for defendant.