Summary
In Williams the court held "[t]he right of contribution between comakers [of a note] is equitable in nature and rests upon an implied contract of reimbursement."
Summary of this case from Liberty Mutual Ins. Com. v. Univ. Steel Bldg., Inc.Opinion
No. 32879.
November 8, 1937.
1. SALES.
There is no implied warranty of a used motor vehicle, but, where the contract as an entirety shows that the vehicle is sold as a 1933 model, there is an express warranty that it is of that model.
2. SALES.
Where a contract of sale of a motor vehicle described it as a "used Ford hearse, as is," but a contemporaneous retention of title contract described it by its serial and engine numbers and as a 1933 model, the phrase "as is" meant that the seller sold and the buyer purchased a Ford hearse of the particular number as a 1933 model as is, or in other words that the buyer accepted a 1933 model in its then physical and mechanical condition.
3. SALES.
It is a material representation in the sale of a motor vehicle that it is of a certain year of manufacture.
4. SALES.
An examination by a prospective buyer of a motor vehicle to ascertain its condition does not exclude his right to rely upon the seller's false representation as to the year of its manufacture, nor is he, as a matter of law, held to know that the vehicle is not as represented because the model plate shows otherwise.
5. SALES.
The measure of damages for breach of warranty of a motor vehicle as to the year of manufacture is the difference in value of the automobile as it was when received and as it would have been if up to warranty.
6. APPEAL AND ERROR.
Appellant cannot complain of the instructions when appellee was entitled to a peremptory instruction.
APPEAL from the circuit court of Montgomery county. HON. JOHN F. ALLEN, Judge.
Loving Loving, of Columbus, for appellant.
Under the evidence in this case the appellant sees very little use of the citation of any authorities. This is a statutory proceedings, and the statute has been strictly followed, and the deal in reference to the hearse is admitted fully by the appellee, his only contention being that he thought he was getting a 1933 model, and that he instead did get a 1932 model, but if this is a fact, it is immaterial for there was an inspection of this car and an acceptance. He bought it as a used car, there was no warranty in any sense whatever as to the model. He received exactly the car he bought. There is no denial of that. It was serial No. 4105 and engine No. 18-204682, Model No. 1933. The evidence shows this car was purchased in March, 1933, by the original purchaser, but having inspected this car, having driven it around before buying it and found it in a satisfactory condition, and considering the value to be what he paid for it, or was to pay for it, and retained it months, without further inspection and without complaint, and paying the monthly payments, he is now estopped from any complaint. There was no warranty as to the model.
Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Durbin v. Denham, 106 Or. 34, 210 P. 165, 29 A.L.R. 1227.
There being no material relevant evidence in defense of this action, we must submit the court erred and made reversible error in not granting a motion for a directed verdict, and also thereafter in granting each instruction for the appellee, and that the verdict is clearly contrary to the law and the evidence and this being the case, and the plaintiff in the court below having made a motion for a new trial, that the court made reversible error in not setting aside the verdict of the jury and not granting a new trial in this cause.
Cowles Horton, of Grenada, for appellee.
The hearse which appellee purchased and promised to pay for and which the appellant obligated himself to deliver was a 1933 model. It was bought upon that representation and warranty and, on that basis alone, was based appellee's obligation. The hearse delivered was a 1932 model of less value than it would have been had it been the model called for and the jury found that appellee had already paid more than the hearse was worth. Appellant, therefore, could not recover for appellee owes him nothing.
McKean v. Apparatus Co., 74 Miss. 119; Hardware Co. v. Ellis, 149 Miss. 257.
Appellee proved that the hearse delivered was a 1932 model for which he had already paid full value. That such a model differs from a 1933 model is a matter of common and judicial knowledge.
Williams v. Lumpkin, 169 Miss. 146.
Appellee demanded, and had the right to demand, the model for which he promised to pay. Appellant's representations with regard to that model were material ones which were binding on both parties. They may not be dismissed on the ground that they were not. As stated by the text, "other representations which have been held to be material, and not mere matters of opinion, are the following: That the vehicle is of a certain year of manufacture."
42 C.J. 777.
Having represented and sold this hearse as such model, appellant became bound thereby either on the idea of his stated representations or a warranty under the law, and it makes no difference, we believe, which view is accepted. Nevertheless, under the contract, we have no doubt that appellant's contract bound him by way of warranty.
42 C.J., 781.
An examination by a prospective buyer of a motor vehicle to ascertain its condition does not exclude his right to rely upon the seller's false representation as to the year of its manufacture.
42 C.J. 778; Motor Co. v. Childress, 156 Miss. 157; Fay Egan v. Cohn, 158 Miss. 733.
Appellant offered no proof whatever as to the value of the hearse delivered. When he closed his case it was a pure conjecture whether the hearse was worth more or less than the agreed purchase price of the vehicle covered by the contract. Appellant rests his whole case on his contract and his notes, and demands payment accordingly, without regard to the real value of the hearse whatever model it may have been. Appellee proved, without contradiction, that he had already paid appellant more than the value of the hearse and, on this proof, no jury could have found that he owed the appellant anything, for the thing delivered. It certainly could not have found that a balance was due on the purchase price of the 1933 model called for by the contract, because the hearse embraced therein has never yet been delivered.
Anderson Williams, doing business as Williams Carriage Hearse Auto Company, of St. Louis, Mo., brought an action of replevin against J.K. McClain, appellee, to enforce a limited interest by virtue of a lien or mortgage contract against him. Issue being joined and the evidence being heard, the jury returned a verdict for the appellee and judgment accordingly, and the appellant, Anderson Williams, appeals here.
The appellant assigns as error the refusal of a peremptory instruction by the court requested by him. The material facts are as follows: On the 7th day of May, 1935, the appellee, in the office of the appellant in the city of Saint Louis, Mo., purchased one Ford limousine hearse, after having inspected the hearse and having driven it around for a time, in company with one of the appellant's employees. The deal was consummated by a contract of sale, a mortgage or retention of title contract, and twelve notes for $50 each, payable monthly thereafter. McClain, the appellee, paid $300 cash, and executed the twelve notes aforesaid as a consideration for the hearse, making a total purchase of $900. In connection with this evidence as to the sales contract and the retention of title or mortgage contract, the unpaid notes were offered in evidence, showing that there was a balance due on them, including attorney's fees and interest, of $252.05.
Williams testified that the appellee made an inspection of the car, and, after the appellee had driven it around for awhile, it was delivered to him and he drove it back to Duck Hill, Miss.
The contract of sale appears to have been an order executed by the appellee to the appellant for a consideration of $900, to be paid, as we have above stated, for "One ____ Model No. Limousine Ambulance Hearse," and further described therein as "1 used Ford Hearse as is, 2 attendant seats, 1 rug, 1 Pr. name Plate." On the back of this contract was a warranty by the Henney Motor Company conforming to the standard warranty of the National Automobile Chamber of Commerce, and immediately thereunder the statement of the appellant adopting the warranty of the National Automobile Chamber of Commerce, and calling attention to the warranty made by the manufacturer of Henney vehicles, which did not have the slightest reference to a Ford motor vehicle.
Contemporaneously with this sales contract, McClain executed, in favor of appellant, a retention of title contract wherein the property was described as "One Ford Limousine-Hearse and two attendant seats, Serial No. 4103, Engine No. 18-204682, Model No. 1933, complete with component equipment," etc., and wherein title thereto was retained by the appellant, and the parties thereto were referred to, respectively, as vendor and vendee, setting forth a description of the notes executed for the balance of the purchase money. The declaration, the affidavit for the writ of replevin, and the writ all described the hearse as described in the retention of title contract. The affidavit and writ of replevin, and also the declaration, each described the hearse as a 1933 model.
McClain testified that he purchased the hearse in question from the appellant, doing business as the Williams Carriage Hearse Auto Company, at his office in St. Louis, on the representation by appellant that the vehicle was a 1933 model, and, after paying eight notes as they became due monthly, he found that a 1933 fan belt would not fit the motor vehicle purchased, that it required a 1932 fan belt; and, after investigation, it was discovered that the appellant had delivered to him a 1932 model motor vehicle.
Other witnesses testified, as experts, that the hearse in question was a 1932 model. McClain testified that he had already paid more than its value in that it was a 1932 model instead of a 1933 model. He complained, by letter, to the appellant about the condition of the car, to which appellant responded, on December 31, 1935, that the hearse was sold to him "as is," and further in the letter that "Our records show this hearse was bought new by the original owner in March, 1933."
There was testimony by other witnesses that there was a material difference in the trade-in value between a 1933 and a 1932 model of car in the same mechanical condition. One witness testified that, according to the schedule adopted by finance companies, the difference in value between the two models was $200; in other words, that a Ford 1933 model car was valued at $200 more than a Ford 1932 model in the same condition.
No objection was interposed to any of this evidence, as to the model or value of a motor vehicle, by the appellant; but, if objection had been made, there was no violation of the parol evidence rule here, as the evidence conformed to and was in harmony with the retention of title contract.
It is the precise contention of the appellant that the words "as is," quoted from the sales contract, are conclusive and controlling that there was no warranty as to the model of hearse. We think the evidence is undisputed that the sales contract, and the retention of title contract executed at the same time as a part of the same transaction, show beyond question that the hearse was represented to the appellee as a 1933 model, and that he relied upon such representation. We think the evidence further established, without conflict, that the hearse was a 1932 model. All the documents mentioned showed the contract between the parties.
No evidence was offered by the appellant on the difference in value between the 1932 and 1933 models of cars; and the effect of the evidence offered on behalf of the appellee was that there was at least $200 a year difference in value between a 1932 and 1933 model, both being of the same kind, in the same mechanical condition, and of Ford manufacture.
There is no implied warranty of a used motor vehicle, but where the written contract, as an entirety, shows that the motor vehicle was sold as a 1933 model, there is an express warranty that it is of that model. The 1933 model as read in connection with the phrase "as is" means that the seller sold and the buyer purchased a Ford hearse of the particular number as a 1933 model "as is;" in other words, the buyer accepted a 1933 model in its then physical and mechanical condition.
In the retention of title or mortgage contract, there is this statement: "Said promissory notes and this agreement constitute a complete contract, which covers all conditions and agreements, both oral and written, between the parties and their agents and employees," etc.
It is a material representation that the motor vehicle is of a certain year of manufacture. See 42 C.J., section 312, page 777. "A contract of sale of a motor vehicle designating it as a model of a particular year constitutes a warranty that it is of that model, and the warranty is broken by delivering to the buyer a model of a different year." 42 C.J., section 325, page 781. The purchaser of a motor vehicle, of course, expects, and has a right to expect, that the "life expectancy" of a motor vehicle of 1933 model will be one year longer than that of a 1932 model; and it is idle to say that a representation, in writing, as we have before us, that a motor vehicle of the 1933 model would not be worth more to the purchaser than one of the 1932 model, conceding that the physical and mechanical condition of each might be apparently the same. Around every village, town, and city in the state of Mississippi are to be found "cemeteries" for worn-out motor vehicles. "An examination by a prospective buyer of a motor vehicle to ascertain its condition does not exclude his right to rely upon the seller's false representation as to the year of its manufacture, nor is he as a matter of law to be held to know that the vehicle is not of the year represented because the model plate shows otherwise." 42 C.J., section 313, page 778.
For an interesting discussion of this question see Pendell v. Warren, 76 Cal.App. 33, 243 P. 707; also see Foutty v. Chalmax Sales Co., 99 W. Va. 300, 128 S.E. 389.
The difference in value between the two models, 1932 and 1933, seems to have been established by evidence not objected to or contradicted by the appellant. This evidence brings the case within the rule announced by this court in Baker McDowell Hardware Co. v. Ellis, 149 Miss. 257, 115 So. 425; The "measure of damages on showing breach of warranty is difference in value of automobile as it was when received and as it would have been if up to warranty."
The instructions given for the appellee and appellant were contradictory, but, in the light of our view of the facts, the appellee was entitled to a peremptory instruction, and, therefore, the appellant cannot complain of the instructions.
Affirmed.