#### Cotzhausen, Appellant, vs. Rockstead, Respondent.

*October 25*

November *14, 1916.*

*Sales: Automobiles: Failure to deliver: Recovery of down payment.*

In an action to recover tlie amount paid on tlie purchase price of an automobile which plaintiff claimed the defendant had failed to deliver on ten days’ notice, as provided in the contract, a general verdict for defendant is *held*to be sustained by evidence tending to show, among other things, that the contract had *293been modified so as to call for a different mqdel of car; that plaintiff afterwards demanded the model originally contracted for, the manufacture of which had been discontinued; that defendant was then unable to procure that car within ten days, but afterwards procured and offered one to plaintiff, who refused it; and that the contract provided that all dates of delivery were made without liability on defendant’s part for delays from causes beyond his control.

Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*Affirmed.*

This action was brought in the civil court of Milwaukee county, where judgment was rendered for defendant on general verdict of a jury. On appeal to the circuit court the judgment was affirmed without new trial, from which judgment this appeal was taken.

*F. P. IIoplcinSj*for the appellant.

*F. F.*Groelle, for the respondent.

KeRwiN, J.

The plaintiff on November 24, 1914, entered into a written contract for the purchase of a “Paige-Detroit Car, Model No. 36 Touring Car” and equipment for delivery on or about April, or after, 1915, on ten days’ notice, for which he agreed to pay down $465 by way of delivery to defendant of one “Welch” winter body, the balance of purchase price, $750, to be paid upon delivery of the automobile. The contract of purchase also provided: “All dates of delivery are made without liability on our part for delays at the factory arising from strikes, fires, accidents, or other causes beyond the control of the manufacturers or *ourselves.”*On July 26, 1915, plaintiff requested that an automobile car as ordered be delivered to him within ten days. The defendant failed to deliver the car within the ten days.

The principal question in the.case is whether the evidence was sufficient to support the verdict. There was an abundance of evidence that after the making of the contract of purchase the same was rescinded or modified so as to make *294an agreement for another and different style of car, viz. a six-cylinder car, in lien of the four-cylinder car contracted for. There was also sufficient evidence to entitle the jury to find that the defendant did not have and could nof get an automobile such as the original contract called for between the time of the notice, July 26, 1915, and the time suit was commenced, and that plaintiff made no claim for any other automobile. Plaintiff testified on the trial that he would not take either a four-cylinder or a six-cylinder car. There is evidence that plaintiff knew the manufacture of the four-cylinder car, originally contracted for, had been discontinued before he made the demand, and it seems quite clear that he demanded the car at a time when he thought it could not be furnished within ten days. Defendant testified that he did not have on hand a No. 36 car at the time the notice was served, July 26th, but had offered to deliver on.e before that time and plaintiff had expressed his desire for ,a six-cylinder, and agreed to take a six and did not want the one contracted for. Plaintiff was informed as early as April, 1915, that the manufacture of No. 36 would be discontinued. There is evidence that plaintiff wanted a six-cylinder car, not a four, the price to be the same and the Welch winter body to be turned in in part payment of the six-cylinder car. The four-cylinder car was offered to plaintiff and he would not take it. The six was also offered him which he refused. There is evidence that he did not want the No. 36 because the price had gone down; that if he took any car it would be a six-cylinder. It is unnecessary to further recite the evidence. It is sufficient to say that it is ample to support the verdict.

Counsel make a point on defendant’s answer wherein he says that he was and is ready and willing to deliver a car under the terms and conditions of his agreement. This allegation in the answer is supported by the evidence. While defendant had no reason to believe that plaintiff after agreeing to take a six-cylinder would ever call for a four, when demand was made for a four, at considerable trouble and ex*295pense be procured a four-cylinder and plaintiff refused to accept it.

Under tbe contract and circumstances of tbe case tbe jury were entitled to find tbat tbe defendant was guilty of no breach of contract. Tbe original agreement, conceding it was in force when plaintiff made tbe demand, gave defendant sucb time beyond tbe ten days as be might be delayed by causes beyond tbe control of tbe manufacturer or himself, and there is sufficient evidence tbat be procured tbe No. 36 four-cylinder car in accordance with tbe terms of tbe original contract in view of tbe circumstances of tbe case and tbe plaintiff’s statements.

Tbe case was fairly presented to tbe jury and the verdict well supported by tbe evidence. We think tbe judgment below is right and tbat no prejudicial error was committed on tbe trial.

*By the Oowrt.*— Tbe judgment is affirmed.