Schmelzer v. Winegar

The complaint states a cause of action for the recovery by the buyer of the purchase price paid for an automobile, after a rescission of the sale by the buyer for breach of Warranty and an offer by the buyer to return the car to the seller. (Pers. Prop. Law, § 150, subd. 1,d, as added by Laws of 1911, chap. 571.)

The judgment which the plaintiff has recovered is for breach of Warranty suffered by the buyer although keeping the motor car. (Pers. Prop. Law, § 150, subd. 1, If b.)

These two causes of action are inconsistent and, therefore, mutually exclusive. In one the buyer repudiates the sale,…