Carte v. Flury Buick-Jeep, Inc.

Decision Date15 February 1973
Docket NumberINC,BUICK-JEE
Citation506 P.2d 701,264 Or. 479
PartiesEdward W. CARTE, Respondent, v. FLURY, a corporation, Appellant.
CourtOregon Supreme Court

Gerald R. Pullen, Portland, argued the cause for appellant. With him on the brief was David R. Vandenberg, Jr., Klamath Falls.

Sam A. McKeen, Klamath Falls, argued the cause and filed the brief for respondent.


TONGUE, Justice.

This is an action for damages arising from a transaction involving the purchase by plaintiff from defendant of a used 1962 Buick, into which the motor of plaintiff's 1961 Buick was to be installed by defendant. Defendant appeals from a jury verdict and judgment for $750 general damages and $2,500 punitive damages.

Before considering defendant's various assignments of error, including those involving the sufficiency of the evidence, it is necessary to review the facts, bearing in mind that in such an appeal plaintiff is entitled to the benefit of all favorable evidence and to all reasonable inferences from such evidence. Cronn v. Fisher, 245 Or. 407, 416, 422 P.2d 276 (1966).

In September 1966 plaintiff took his 1961 Buick to defendant to repair a broken lower control arm. Defendant's service manager, Mr. Ridenour, said that repairs would cast about $75. He also said that defendant had a 1962 Buick with a cracked motor block for sale and suggested that plaintiff buy it and have defendant transfer the good motor block of his 1961 Buick to that car. Plaintiff agreed.

He then purchased the 1962 Buick for $150 and left both cars with defendant for the transfer of the motor. Ridenour told him that this would cost about $150. It was also agreed that the 1961 Buick would be left 'disassembled' and that there was 'no use putting it back together.' At that time plaintiff intended to 'junk' the 1961 Buick (without a usable engine block).

A few days later plaintiff picked up the 1962 Buick and was told that the mechanic had a 'little trouble' to 'get your motor to fit in there.' At that time he 'left all the parts of the 61' with defendant, at the suggestion of Ridenour that plaintiff 'sell your old car to the mechanic.'

Two days later plaintiff talked to the mechanic, who offered him $50 for the disassembled 1961 Buick. He rejected that offer and the mechanic then helped him load the parts in his pickup truck to take home. At that time he noticed that the spare tire, with '85 to 90 percent rubber,' the radiator, and the power steering unit were missing. He also had the 1961 chassis towed to his home.

About three days later plaintiff checked the motor numbers on the two cars and discovered that the 1961 motor had not been put into the 1962 Buick. He did not, however, notify defendant or make any complaint to defendant at that time, or until the filing of the complaint.

What had happened was that defendant's mechanic encountered difficulty in getting the 1961 motor into the 1962 Buick and then discovered that the 1962 motor block was not cracked, but had a hole in the timing chain cover that could be repaired by transferring to it that part, which was 'interchangeable,' from the 1961 Buick. The 1962 motor was then put back into the 1962 Buick, which operated 'just like it was supposed to.' The car was then delivered to plaintiff, who operated it without difficulty for 20 months and testified that it was worth $800 at the time of delivery.

Defendant's service manager, Mr. Ridenour, testified that he explained to plaintiff what had actually happened, but plaintiff denied that he did so. Plaintiff also testified that it was possible to install the 1961 motor in the 1962 car by making some minor alterations.

Forty-five days later plaintiff received from defendant a bill for $169, including $150 for labor to 'switch engines' and $19.55 in gaskets, 'coolant' and other parts. That bill was never paid.

Plaintiff testified that if he had known the facts he would not have purchased the 1962 Buick, but would have had the 1961 Buick repaired. He also testified that after he learned the facts he first intended to reassemble the 1961 Buick.

At some unspecified time, however, either before or after plaintiff received the bill, but after he had discovered that the motors had not been 'switched' and that some of the 1961 parts had not been delivered to him, plaintiff sold the 1961 Buick, in its disassembled condition, to Mr. Dotson, a mechanic friend of his, for $75.

Also, according to plaintiff:

'The agreement was that he would buy my car, and put it back together with the parts that were supposed to have been there, the parts from Flury Buick, and that he would pick them up from Flury Buick, and that I would, if any parts were missing, I would furnish him with the parts to put this car back in the shape that it was before it reached Flury Buick.'

Plaintiff also testified that there were $300 worth of parts missing at that time which he was required to furnish to Dotson under that agreement. It appears, however, that plaintiff did not actually pay for all of such parts, although he produced some bills paid by him, including bills for $77.50 for a radiator and lower control arm, $10 for a timing cover, $7.50 for a fan and $4.50 for other parts. Mr. Dotson apparently was unable to get all of the original parts from defendant and purchased other parts. He was, however, able to reassemble the 1961 Buick, for which he was allowed $650 as a trade-in on a 1968 Mustang. As a result, Dotson said that he made 'one of the best buys of the year.'

Plaintiff claimed as a part of his damages the $300 for the value of missing parts. He also claimed as damages the difference between the value of the 1961 Buick at the time he took it to defendant and its value in its subsequent disassembled condition. Thus, plaintiff testified that the car was worth $600 in its previous condition, with the broken control arm, and that although it would have been worth $75 in its subsequent condition if no parts had been missing, it was actually worth nothing in its subsequent condition, considering the missing parts. In his complaint, however, plaintiff alleged that 'the reasonable value of said 1961 Buick before the engine was removed was $550 (amended on trial to $700) and the value afterwards was $250.'

Thus, the complaint on which the case was submitted to the jury, as amended, claimed a total of $750 in general damages, including $300 for the purchase of 'new parts and labor for placing it in a running condition,' and $450 for the difference between the alleged 'before and after' values of $700 and $250. The jury returned a verdict for plaintiff in that full amount, together with $2,500 in punitive damages.

1. The trial court did not err in denying defendant's motions for involuntary nonsuit and directed verdict.

Defendant contends that the trial court erred in denying its motions for an involuntary nonsuit and for a directed verdict upon the grounds (1) that plaintiff did not plead and prove the elements of fraud; (2) that plaintiff did not prove damages with reasonable certainty; and (3) that plaintiff did not incur any damages, but actually profited from the transaction.

We agree that plaintiff did not plead and prove the elements required for recovery in a common law action for fraud, most notably by failing to prove that he did anything in reliance upon any misrepresentation by defendant. It does not follow, however, that plaintiff was not entitled to recovery under the evidence in this case.

Upon purchase by plaintiff of the 1962 Buick, defendant agreed to install the 1961 motor in the 1962 car. Plaintiff delivered custody of the two cars to defendant for that purpose and there was testimony, which the jury was entitled to believe, that defendant could have done so. Instead of doing so, however, defendant left the 1962 motor in the 1962 Buick and left the 1961 Buick in a disassembled condition, with its motor block on the floor, the radiator removed, with its hoses cut, and various other parts strewn about. Some of these component parts were also lost or misplaced and were not returned to plaintiff.

It is true that, as a result, plaintiff got a better 1962 Buick than he bargained for. In our opinion, however, he was entitled to the benefit of that bargain. Furthermore, the transaction involving his purchase of that car, including any profit made by him on that transaction, cannot properly be considered in determining whether plaintiff was entitled to recover for any damage caused by defendant to plaintiff's 1961 Buick.

It is also true that, under the original agreement, the 1961 Buick was to be left in a disassembled condition to be 'junked,' without a motor, other than the 1962 motor with a cracked engine block. Again, however, there was testimony from which the jury could have found that defendant should have discovered that the 1962 Buick did not have a cracked engine block and that, accordingly, there was no good reason to disassemble the 1961 Buick by taking out the motor and the radiator and by removing other parts, except for the part needed to repair the 1962 Buick.

If a mechanic in whose custody an automobile is left for repairs either negligently or willfully removes or damages some part, with the result that the automobile does not operate properly and is wrecked, it is obvious that its owner would have a cause of action in tort against the mechanic to recover for the damage to his car. In a somewhat different sense, but to the same basic effect, if the jury found in this case that the 1961 Buick was damaged as a result of defendant's misconduct, then it follows that whether such conduct was negligent or willful, the plaintiff, as its owner, is entitled to recovery for the resulting damage.

It is true that plaintiff's attorney appeared to be somewhat hard-put on trial to state any accepted 'theory' for recovery...

To continue reading

Request your trial
6 cases
  • Emery v. State
    • United States
    • Oregon Supreme Court
    • September 6, 1984
    ...bailment theory. Although the return of property in a damaged condition has been held to support recovery, Carte v. Flury Buick-Jeep, Inc., 264 Or. 479, 490, 506 P.2d 701 (1973), in light of the parties' stipulation we can draw no inference of fault.2 The plaintiffs in their brief in the Co......
  • Roberts v. Mitchell Bros. Truck Lines
    • United States
    • Oregon Supreme Court
    • May 20, 1980
    ...agreement to shift the risk of loss." See also Brown on Personal Property, § 11.2 at 259 (3d ed. 1975). In Carte v. Flury Buick-Jeep, Inc., 264 Or. 479, 490-91, 506 P.2d 701 (1973), this court held "It is well established in Oregon that when it is shown that personal property has been deliv......
  • Koennecke v. Waxwing Cedar Products, Ltd.
    • United States
    • Oregon Supreme Court
    • November 28, 1975
    ...Co., 75 Or.Adv.Sh. 3414, 541 P.2d 439 (1975). See also 2 Bancroft's, Code Pleading §§ 958, 959 (1926). Cf. Carte v. Flury Buick-Jeep, Inc., 264 Or. 479, 494, 506 P.2d 701 (1973). Plaintiff's second cause of action alleges 'as a direct and proximate result of the negligence of defendants * *......
  • Shepherd v. Hub Lumber Co.
    • United States
    • Oregon Supreme Court
    • October 16, 1975
    ...665, 178 P.2d 702 (1947)) Hansen v. Oregon-Wash. R. & N. Co., 97 Or. 190, 188 P. 963, 191 P. 655.' See also Carte v. Flury Buick-Jeep, Inc., 264 Or. 479, 490--91, 506 P.2d 701 (1973). The problem presented by this case involves the remedies available to the owner-lessor for breach of that d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT