Chauvin v. La Hitte
| Decision Date | 16 January 1956 |
| Docket Number | No. 42172,42172 |
| Citation | 85 So.2d 43,229 La. 94 |
| Parties | Ovide J. CHAUVIN v. Leonard LA HITTE, d/b/a L & L Auto Sales. |
| Court | Louisiana Supreme Court |
Charles E. Cabibi, New Orleans, for defendant-appellant.
Anthony R. Occhipinti, Lawrence Hennessey, Jr., William J. Lopez, John P. Dowling, New Orleans, for plaintiff-appellee.
Leonard LaHitte, who conducts a business in the City of New Orleans under the name of L & L Auto Sales and is the defendant herein, prosecutes this appeal from a judgment that rescinded his sale to plaintiff, Ovide J. Chauvin, of a 1953 Studebaker automobile, condemned him to refund the paid purchase price of $2,850, and awarded plaintiff attorney's fees in the additional sum of $400.
As is shown by his assigned written reasons the district judge found as a fact that the defendant, in making the sale to plaintiff, fraudulently represented the automobile as being 'brand new' when it was in truth a used car to his knowledge.
The evidence contained in the record, which we have carefully studied and weighed, convincingly supports the mentioned finding. Contradictory of the sworn assertions of the defendant, which are that he never held himself out to the public as a new car dealer and that in making the sale in question on September 8, 1953 he merely represented the Studebaker automobile to be 'practically new' and as having been owned by his father in law, is the testimony of plaintiff, his wife, his daughter, and his son in law, all of whom were present when the negotiations were conducted. They testified that at such time plaintiff, who was desirous of acquiring a new vehicle and was contracting to pay the regular 'new car' list price, received assurance from the defendant that the automobile being purchased was 'brand new' and that a service policy, which usually accompanies such a purchase, would be mailed to him immediately; but that some weeks later he learned that his acquisition was of a 'used' machine, it having been sold to another on March 21, 1953 (almost six months prior to his purchase) by a Studebaker dealer in Memphis, Tennessee.
Moreover, the testimony of plaintiff and his witnesses, as to the intentional misrepresentation perpetrated by the defendant, is corroborated by these proven circumstances:
(a) The business cards circulated by defendant contained the words 'New and Used Cars'. This contradicts his assertion that he did not hold himself out to the public as a 'new' car dealer.
(b) He maintained a sign at his premises reading: 'Like New and Used Cars'. The word 'Like' was exceedingly small in proportion to the other words and, hence, indicated the existence of an intent to mislead.
(c) The total consideration for the sale of the second hand vehicle to plaintiff approximately equaled the regular list price for a new one of the same make, model and type.
(d) The application for a certificate of title that was prepared by defendant, or under his direction, listed the car as being new.
(e) A photostatic copy of the bill of sale that accompanied such application shows the defendant's signature in connection with and as approving the statement: 'This car is new and has never been licensed or titled in this or any other State.'
(f) The service policy was not mailed as promised. Plaintiff's wife secured it only after visiting defendant's premises some eleven days following the purchase and by making demand therefor. But even then it was valueless, and Studebaker service stations later refused to honor it, because the provisions thereof provided service for a maximum period of ninety days after delivery to the original purchaser and the car had been delivered originally on .
Also, we agree with the trial court that inapplicable to this cause is the doctrine, recognized in our jurisprudence and invoked by this defendant, that a suit to rescind a sale must fail when the purchaser has used the property to such an extent that it cannot be returned to the seller in substantially the same condition as when sold.
It appears that plaintiff and his wife did not suspect any irregularity in the sale until September 19, 1953 (eleven days after its consummation) when they obtained the service policy and noticed therein that a prior purchaser was one Joseph Bruno. Even then,...
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