Opinion
No. 4740.
Argued June 2, 1959.
Decided July 10, 1959.
1. Where the plaintiff, inexperienced in automotive mechanics, prior to the purchase of a used automobile noticed a noise in the engine while driving it and received the assurance from defendant's salesman that the noise in the motor would be remedied and the plaintiff in reliance thereon signed a purchase agreement, such evidence was sufficient to establish an implied warranty of fitness; and the failure of the defendant to remedy the defect warranted a finding that defendant breached such warranty.
2. Whether plaintiff notified the defendant seller of his intention to rescind the purchase agreement of a used automobile within a reasonable time as provided by the Uniform Sales Act (RSA 346:69 III), and whether the car was in substantially as good a condition as it was at the time of sale, were questions of fact for the Trial Court to determine.
ASSUMPSIT, to recover the amount paid by the plaintiff for a certain automobile purchased from the defendant which the plaintiff claims was not fit and did not conform to the warranty made to him.
Trial by the Court (Griffith, J.) resulted in a verdict for plaintiff and a dismissal of defendant's counterclaim.
Defendant's exception to the denial of its motion to set aside the verdict as against the law, the evidence and the weight of the evidence was reserved and transferred.
On August 15, 1955, plaintiff purchased a 1954 Mercury station wagon from defendant. Before the purchase he tried out the car and noticed a noise in the motor and reported it to defendant's salesman who promised that it would be taken care of before delivery. At the time of purchase defendant gave plaintiff a document entitled "One Year Bond" which stated "This Warranty Protects Joseph P. Nadeau . . . Robert H. Irwin Motors, Inc., has inspected the above vehicle and certifies that in its opinion the parts hereinafter specified are in good working order and condition and will with normal usage require no repairs or replacements for one (1) year from the date of purchase. [Motor was specified] The necessity for repairs or replacement under this warranty shall remain in the sole discretion and judgment of Robert H. Irwin Motors, Inc."
After plaintiff took delivery the car continued to have noise in the motor. He took it to defendant's garage the following week and "they fixed the noise for a while" but it reappeared. Plaintiff brought the car back to defendant on a number of occasions thereafter with complaints about its performance. In the late spring of 1956, on advice of counsel, he took the car to another garage and received the opinion that a "short block assembly" was necessary to cure the trouble. Defendant disagreed with this opinion but agreed "we'd fix that car, what we thought was necessary to take care of it." Plaintiff left the car at defendant's garage about June 18, 1956, for such repairs "in accordance with the terms of your guarantee."
When the car had not been repaired on or about July 25, 1956, plaintiff removed his plates from the car which was still on defendant's premises and notified it in writing by counsel that "under the circumstances Mr. Nadeau has no alternative but to rescind the sale, leave the car with you, and ask for his money back. I will therefore appreciate it if you will consider this letter notice of such a rescission."
Harold E. Wescott (by brief and orally), for the plaintiff.
Bernard I. Snierson and John P. Chandler (Mr. Chandler orally), for the defendant.
"The Uniform Sales Act gives the buyer of goods a right to rescind the sale and obtain restitution for the amount paid the seller on the grounds of breach of warranty. I A Uniform Laws Annotated 295; RSA 346:69 I (d)." Pineau v. White, 101 N.H. 119, 120.
It is not necessary to decide whether the so-called "One Year Bond" constitutes an express warranty under RSA 346:12 as we are of the opinion that an implied warranty of fitness (RSA 346:15 I) could be found on the evidence and was in no way precluded by the express provisions of the "Bond." RSA 346:15 VI. Plaintiff never had any mechanical experience concerning cars. He was buying a used car. After trying it out he told the salesman there was a noise in the motor and the latter agreed to repair it. Plaintiff signed the agreement of purchase in reliance on that assurance. The "Bond" given to plaintiff at the time of purchase stated that defendant "has inspected the above vehicle and certifies that in its opinion the parts hereinafter specified [including the motor] are in good working order and condition." This statement was not inconsistent with the promise made by defendant's salesman that the noise in the motor would be fixed. RSA 346:15 I, VI. This evidence was sufficient to establish an implied warranty of fitness. Pineau v. White, supra.
There was noise in the motor after plaintiff received delivery of the car. He took it to defendant's garage the following week and on several occasions thereafter with complaints about it. There was evidence that "in order to have that car right, it would have to have a short block assembly." The motor had not been fixed on July 25, 1956. Plaintiff and his wife testified Mr. Irwin told them "he already had put all the money into the car that he was going to, that it was a lemon, that he wasn't going to do any more repairs to it." On this evidence the Court was warranted in finding a breach of the implied warranty of fitness. Clover c. Co. v. Smith Co., 96 N.H. 491.
Where rescission takes place after acceptance, the buyer must return or offer to return the goods to the seller in substantially as good condition as they were in at the time the property was transferred to the buyer and the buyer must "notify the seller within a reasonable time of the election to rescind." RSA 346:69 III. Plaintiff did not notify defendant of his intention to rescind until July 25, 1956. However he was in defendant's garage complaining about the noise in the motor within one week of August 15, 1955, the date of purchase. At one time he "had been in and out of the garage practically every week or every other week." Mr. Irwin had the car in the garage "part of the time" although plaintiff knew about the noise from the beginning "What I was trying to do was get the car fixed." The car had been driven about 1,000 miles while plaintiff had it. On this evidence it was a question of fact for the Trial Court whether plaintiff notified the defendant within a reasonable time of his intention to rescind and whether the car was in substantially as good a condition as it was at the time of sale. 72 A.L.R. 726, 745; 77 A.L.R. 1165, 1187; 41 A.L.R. (2d) 812, 825; Id., 1173, 1196.
There being evidence on which the Trial Court could find an implied warranty of fitness, a breach thereof by the defendant and notification to it by plaintiff within a reasonable time of his election to rescind, defendant's exception to the denial of its motion to set aside the verdict is overruled.
Judgment on the verdict.
All concurred.