C. E. Wright & Co. Inc v. Shackle-ford

• Decision Date: 13 June 1929
• Citation: 148 S.E. 807
• Court: Virginia Supreme Court
• Parties: C. E. WRIGHT & CO., Inc. v. SHACKLE-FORD.

148 S.E. 807

C. E. WRIGHT & CO., Inc.

v.SHACKLE-FORD.

Supreme Court of Appeals of Virginia.

June 13, 1929.

Appeal from Court of Law and Chancery of City of Norfolk.

Bill by O. L. Shackleford against C. E. Wright & Co., Incorporated. Decree for plaintiff, and defendant appeals. Reversed, and cause dismissed.

Henry Bowden and William L. Parker, both of Norfolk, for appellant.

James G. Martin, of Norfolk, for appellee.

HOLT, J. In the summer of 1927, Judge O. L. Shackleford entered into negotiations with C. E. Wright & Co., through Mr. Aydelotte, its salesman and agent, for the purchase of a Hudson car. That company had in stock then six or seven broughams, which had been in a measure superseded by newer models, and which it was anxious to sell. As an inducement, their list price was reduced by $250. Mr. Aydelotte brought to Judge Shackleford for inspection and demonstration one of them. Judge Shackleford and his wife both drove it. It ran smoothly, appeared to be in perfect condition, and before the purchase was tried out again, with the same satisfactory results. At this second trial, which was on July 26, 1927, Judge Shackleford advised Mr. Aydelotte that he would take this identical car if delivered that afternoon. Later Mr. Aydelotte informed him over the telephone that the particular car shown had, in his absence, been sold by another salesman, but that he would equip, oil, and grease a perfectly new one then in the warehouse, and bring it over later that evening. During the progress of these negotiations some question arose as to excessive use of gas by Hudson cars, and this salesman said that certain changes had been made in the engine model which decreased consumption, and that in his judgment it would now make from 14 to 16 miles per gallon of gasoline. This it failed to do.

When the car was brought around, Judge Shackleford was not at home. Mrs. Shackleford went to ride in it, and noticed a very unusual jerk whenever the clutch was let in, and also that its operation was both noisy and disagreeable, but was told that these defects were due to newness and would disappear with use.

When the judge returned home late in the day, the contract of purchase was signed. He was then assured that this particular car ran smoothly and was in perfect condition, although the agent making these representations knew at the time they were not true. Next morning complainant went to Suffolk and was driven to the station by his wife. He also then noted the trouble, but was told by his wife that Aydelotte said it was due to the stiffness of a new machine and would soon disappear with operation. Upon the following morning he went back to Suffolk, and on this occasion drove himself. The same defects again became patent, and upon comment was again reminded by his wife of the agent's assurance that they would soon correct themselves.

Mrs. Shackleford had planned to go to their country home, about 130 miles distant. Judge Shackleford did not want to disappoint her. His statement is: "I knew that she was going away the next day to the farm, and I knew that she had no other car to drive, and I thought I would just let the matter stop there." She did go. On August 2, he joined his wife. They continued to use the car, and the trouble was always apparent. Mrs. Shackleford, for some personal reasons, came back to Norfolk on August 22, and on the 23d took the car to the Wright Company and went over with it the defects which had developed. She returned that afternoon, but found that nothing had been done, and was told that the engine would have to be taken down to make the necessary repairs, and to bring it around next morning. She took it back that afternoon and came for it on the 24th. Still nothing had been done, but respondent said that she could, with confidence, drive to the farm, and again assured her that the trouble was due to newness, and that upon her return to Norfolk the company would "make it satisfactory, " if it had not disappeared. She did drive it back to the farm, and used it there until they returned to Norfolk on the 7th of September. Judge Shackleford was much dissatisfied with the situation, and called in an expert mechanic, Mr. Edwards, who on September 11 explained just what the imperfections were, that they were due to a defective clutch and to a "piston slap, " or to a loose and ill-fitting piston. Edwards saw Mr. Wright, at complainant's suggestion, and reported that "they said to bring the car around there and they would make these things good." Judge Shackleford was distrustful, and on September 13, wrote, saying in part:

"I hesitate to consent to have this done by a mechanic who has stated to Mrs. Shackleford that the car is already in perfect condition, but I will agree to let you do this, without cost to me, including the job of locating and eliminating the noise which Mr. Edwards was unable to locate, if it is done with the understanding that if, after 30 days' trial, these troubles or any of them recur, I may turn the car back and have my contract rescinded, and my old car taken in trade returned to me."

To this the company replied by letter on the 15th, in which it said:

"We are perfectly willing to do anything to your car to put it in proper operating condition. The car is guaranteed by the factory, which guaranty is printed in the front part of the instruction book. The guaranty calls for the owner to pay for the labor charges, the factory replacing the parts. This condition, however, we have waived, and in this case would stand the labor charges ourselves.

"However, we cannot agree to take your car back, as stated in your letter. We think that, on further consideration, you will agree that this would be impossible for us to do. We are willing and anxious, though, to see that your car is put in condition to be entirely satisfactory to you, and if you will have the car brought to us, or allow us to send for same, we will take immediate steps to accomplish this. We feel certain that, when we have finished with the work on your car, you will be pleased with it, and, if you do have any further trouble with same, you can be assured that we will do everything in our power to correct it, regardless of when it may occur."

This statement Judge Shackleford construed as a definite refusal on the part of the company to take the car back. At that time it had been run about 3.500 miles. He continued to use it in limited way until about December 12th. The additional mileage during this time was somewhere between 250 and 275 miles. Suit was instituted on October 15.

The rattling in the mechanism charged in the bill was due to a loose washer, and, as Judge Shackleford testified, was "very inconsequential, " so that substantial defects to be considered are those which lay in the clutch and in the pistons.

As is shown by its letter of the 14th, this company was willing to make all necessary changes and repairs; it was willing to put in a new clutch, and new pistons, and a new engine, and, if necessary, the engine then being used on the new models, which was supposed to be a superior one, all to be done at the company's expense. A new clutch put in would have cost, at the outside, about $16, and an entire new set of pistons about $70. A complete new engine installed would have cost about $S00. These changes the company was willing to make without prejudice, but Judge Shackleford was unwilling to accept them unless the company, on its part, would agree to take the car back if any of the old troubles reappeared at the end of 30 days, and it was on this rock they split.

Complainant in his bill asks that the contract of purchase be rescinded because of fraud in its procurement. In due season the cause was matured, depositions were taken, and upon argument submitted to the chancellor, who was of opinion that the complainant was entitled to the relief prayed for, and so decreed, and it is from this decree that the defendant has appealed.

The correctness of the judgment of the court below must be presumed.

"The judgment of a court of competent jurisdiction is always presumed to be right until the contrary is shown, and a party in an appellate court, alleging error in the court below, must show it in the regular way, or the presumption in favor of its correctness must prevail." Harman v. City of Lynchburg, 33 Grat. (74 Va.) 43; Kiser v. Hannah, 148 Va. 594, 139 S. E. 279.

When a chancery cause is heard upon depositions, the rule which governs common-law judgments, where the entire case is submitted to the judge, does not obtain, although, if the chancellor heard evidence in open court, there would be no sound reason for such a distinction. Here all that can be said is that the burden is upon the appellant to show error.

That fraud, as a matter of fact, was practiced, is plain. The car, when delivered, was not in perfect condition, did not run smoothly, and this the salesman knew. It is likewise plain that the defects in clutch and piston were material. It follows that complainant would be entitled to relief, had he proceeded with promptness to repudiate his purchase.

"It is an established doctrine that, when a party intends to repudiate a contract on the ground of fraud, he should do so as soon as he discovers the fraud. If, after the discovery of the fraud, he treats the contract as a subsisting obligation, he will be deemed to have waived his right of repudiation. Prompt action is essential, when one believes himself entitled to a rescission of a contract. Max Meadows, etc., Co. v. Brady, 92 Va. 71, 22 S. E 845: Hudson v. Waugh, 93 Va. 518, 25 S. E. 530; Hurt v. Miller, 95 Va. 32, 27 S. E. 831; West End Co. v. Claiborne, 97 Va. 734, 34 S. E. 900; Campbell v. Eastern Bldg. Asso., 98 Va. 729, 37 S. E. 350." Finch v. Garrett, 109 Va. 114, 63 S. E....