Curby v. Mastenbrook

• Court: Michigan Supreme Court
• Writing for the Court: BUTZEL
• Citation: Curby v. Mastenbrook, 288 Mich. 676, 286 N.W. 123 (Mich. 1939)
• Decision Date: 05 June 1939
• Docket Number: No. 14.,14.
• Parties: CURBY v. MASTENBROOK et al.

288 Mich. 676

286 N.W. 123

CURBY

v.MASTENBROOK et al.

No. 14.

Supreme Court of Michigan.

June 5, 1939.

Action by Sophie Curby against Erbest Mastenbrook and Frank DeHaan, copartners doing business as E. & F. Motor Sales, for personal injuries sustained when wheel came off a used automobile which defendants had sold to plaintiff and her husband. From a judgment for the defendants, notwithstanding a verdict in favor of the plaintiff, the plaintiff appeals.

Judgment set aside and case remanded for entry of judgment in accordance with verdict. Appeal from Circuit Court, Muskegon County; Joseph F. sanford, judge.

Argued before the Entire Bench.

William J. Balgooyen, of Muskegon Heights, and Frank E. Wetmore, of Hart, for appellant.

Joseph T. Riley and Robert A. Carr, both of Muskegon, for appellees.

BUTZEL, Chief Justice.

Plaintiff Sophie Curby and her husband, Meddie Curby, were the owners of a Ford car, certificate of title to which was held in their joint names. They also owned a trailer jointly. On August 23, 1937, they went together to defendants' place of business in Muskegon, Michigan, with the view of exchanging their car and trailer for a better used car. Defendants conducted a secondhand automobile business on a lot, on the rear of which was a building where repairs were made. Plaintiff and her husband were shown a number of cars. Plaintiff testified that one of the defendants in referring to the cars stated that ‘they were all in good condition,’ and that defendants guaranteed them for thirty days. Mr. Curby more specifically testified that defendant DeHaan told him and his wife that their cars were ‘fully guaranteed for thirty days, and they would not let them out unless they were in perfect condition.’

The next evening Mr. Curby returned and decided to make the trade for a Terraplane car which plaintiff had not previously seen. On Wednesday, August 25th, Mr. Curby again came back alone, delivered his Ford car to defendants, and signed the title to the Terraplane, it being expected that his wife would likewise affix her signature to complete the transaction. He testified that defendants would not permit him to show the car to his wife without signing it. The parties went to a finance company and Mr. Curby signed the required papers himself, in which he agreed to pay the company $55 before receiving title to the car from defendants. He told defendant DeHaan that he was taking the car to show his wife and if satisfactory to her, he would return to complete the deal. This was not contradicted.

At about 2:30 in the afternoon, after certain repairs to the brakes of the car had been made, Curby left the used car lot and drove to Ludington, to which his wife had gone on business. There he met plaintiff and together they started back to Muskegon. On this return trip, as the car neared Montague, and while on a hill, the left front wheel came off, causing plaintiff's husband to lose control of the car so that it collided with another car and as a result plaintiff sustained serious injuries. Plaintiff claimed that the accident was caused because the wheel was not properly attached to the hub, and recovered a verdict against both defendants. The court set the verdict aside and rendered a judgment non obstante for defendants.

It is only necessary to discuss a few of the questions raised on appeal, construing the evidence in plaintiff's favor as on directed verdict. Yacobian v. Vartanian, 221 Mich. 25, 190 N.W. 641. Our attention is called to Bayer v. Winton Motor Car Co., 194 Mich. 222, 160 N.W. 642, in which we stated that the rule of implied warranty, which may be regarded as an exception to the general doctrine of caveat emptor, does not apply to the purchase and sale of secondhand machinery such as used cars. However, in the instant case there is considerable evidence that defendants expressly represented that the car was free from defects and would not be sold if any defects existed. An additional guarantee of thirty days was made. When such statements are deliberately calculated to induce confidence in the buyer and promote the sale, they cannot be considered merely ‘puffing’ of goods to promote sales. Where sellers are describing the condition of chattels so likely, if defective, to occasion injury to life and limb, they should anticipate close scrutiny of their language by the courts. What might be considered mere ‘puffing’ of a perfectly harmless product, must be held a distinct representation in the case of an automobile. The condition of the Terraplane was the most material consideration in the entire transaction between the parties, and the words employed by defendants to describe it are clearly within the rule of Worden v. Peck, 245 Mich. 237, 222 N.W. 101. See also, Murphy v. McGraw, 74 Mich. 318, 41 N.W. 917.

We must also reject defendants' argument, drawn from Bayer v. Winton Motor Car Co., supra, that an oral warranty could not exist because of a written contract of sale. If such a contract was made it is not revealed by the record. We cannot regard the ambiguous testimony that when Curby went to the finance company he signed ‘a paper’ in addition to a note, as sufficient proof of a contract between the buyers and sellers, which would preclude accompanying parol representations. Such ‘a paper’ was not introduced.

Appellees admitted that only a few days before the sale, the wheels of the car had been removed for painting, apparently by an independent contractor, who did such work for defendants. Nevertheless, without making any inspection of the wheels thereafter, defendants represented that the car was in ‘perfect condition.’ Obviously, defendants did not know whether or not the car was in ‘perfect condition.’ It has long been established that a party who misrepresents a fact is subject to liability for bodily harm resulting from an act done by another in reliance on the truth of the statement, if the speaker intends his statement to induce the action, or should reasonably recognize that it is likely to so induce it, and if he knows that it is false or that he has not the knowledge which he professes to...