Burke v. Thomas Chevrolet

• Decision Date: 19 March 1975
• Docket Number: No. 11492,11492
• Citation: 227 N.W.2d 31,88 S.D. 660
• Parties: John E. BURKE, Plaintiff and Respondent, v. THOMAS CHEVROLET, a corporation, d/b/a Southtown Motors, and Pat Thomas, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 31

227 N.W.2d 31

88 S.D. 660

John E. BURKE, Plaintiff and Respondent, v. THOMAS CHEVROLET, a corporation, d/b/a Southtown Motors, and Pat Thomas, Defendants and Appellants.

No. 11492.

Supreme Court of South Dakota.

March 19, 1975.

Gale E. Fisher of May, Johnson & Burke, Sioux Falls, for plaintiff and respondent.

Ronald J. Wheeler of Churchill, Manolis & Wheeler, Huron, for defendants and appellants.

DUNN, Chief Justice.

This is an appeal from a judgment for damages awarded the plaintiff, John E. Burke, on the grounds of breach of express warranties in the purchase of a used automobile. The trial court found that the defendants, Thomas Chevrolet, a corporation doing business as Southtown Motors, and Pat Thomas, and its agents made statements of fact relative to the condition of the car at the time plaintiff purchased it which induced plaintiff to purchase the same, and upon which the plaintiff relied; that such statements were false; and that plaintiff notified defendants of defects within the time provided by the express warranty. The trial court rendered judgment against defendants for the difference between the price paid for the car and the actual value placed on the car at the time of purchase, plus some consequential damages. We affirm.

This case stems from the sale of a used 1971 Javelin by the defendants to the plaintiff on March 25, 1973. Plaintiff and his son went to Southtown Motors some ten days before the sale and received certain representations concerning the car from Lee Hayden, a salesman, who was in charge of the Southtown lot that day. Plaintiff testified that Mr. Hayden told him that the previous owner had experienced motor trouble which had been repaired and that the automobile was now in 'tip-top condition,' and when asked by the plaintiff whether the car had been 'in a wreck or anything like that,' he replied, 'No. The only thing that is wrong with this car is the motor. Other than that, it's just like it came from the factory.' Plaintiff also testified that defendant Pat Thomas, Southtown's manager, assured him that the only trouble the car had experienced was motor trouble, and that the previous owner had '(t)raded down' because he couldn't afford to have the engine fixed. Also, plaintiff testified that Thomas told him that the engine had been repaired and 'was in good operating shape.' The car carried a 100% Written warranty for thirty days on the engine, transmission and electrical system.

It later developed from the testimony of LeRoy Hoefert (former owner) that the car had been completely gutted by fire; that Hoefert and repaired the same with used wire loom and improvised parts in the airconditioning and electrical systems; and that he had painted the car, installed glass, straightened or replaced the top and the upholstery. Hoefert sold the car to one Yerkan who testified that he knew the car had been gutted by fire, but that he had failed to tell the defendants of this fact before selling the automobile to them.

Plaintiff testified that problems with the car began some ten days after delivery. The car would not start, the air conditioner did not work properly, the windshield wipers would not work upon acceleration and the battery went dead. Plaintiff testified that he went to the defendants and advised them of the problems he was having with the automobile and that they did nothing. He then had the car repaired elsewhere at a total cost of $132.52. Continuing complaints at the time of trial had to do with the electrical system--especially with regard to the heating and cooling system--and the failure of the windshield wipers to perform upon acceleration.

Plaintiff testified that the fair and reasonable value of the car at the time of purchase was $1,500, and that he based this value on what he had learned about the car subsequent to its purchase. He also testified that he paid the defendants $2,795 ($2,300 cash, plus $495 trade-in) for the automobile. The trial court, on the basis of the evidence...