Ehrlich v. Roby Motors Co., Inc.

• Decision Date: 04 June 1928
• Docket Number: 26878
• Citation: 117 So. 590,166 La. 557
• Court: Louisiana Supreme Court
• Parties: EHRLICH et al. v. ROBY MOTORS CO., Inc

117 So. 590

166 La. 557

EHRLICH et al. v. ROBY MOTORS CO., Inc

No. 26878

Supreme Court of Louisiana

June 4, 1928

Appeal from First Judicial District Court, Parish of Caddo; J. H Stephens, Judge.

Suit by Harry & Simon Ehrlich against Roby Motors Company, Inc. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Thigpen Herold, Lee & Cousin, of Shreveport, for appellants.

Dickson & Denny, of Shreveport, for appellee.

OPINION

OVERTON, J.

This is a suit to rescind, because of a redhibitory defect, the sale of an automobile, of the sedan type, and to recover $ 3,290, paid for it, with legal interest on that amount from April 4, 1923, until paid.

The automobile was purchased by plaintiffs on April 4, 1923, as a car for pleasure and recreation, for $ 3,290 cash. The car when sold to plaintiffs, was represented to be a new car, properly constructed, in perfect condition, and fit for the purposes for which it was bought. The automobile gave plaintiffs some trouble before any specific defect was found in it. About five months after the purchase, plaintiffs noticed what appeared to them to be a scratch on the cowl of the car; that is, on that part of the automobile between the hood and the windshield. About a month after this, at which time plaintiffs had driven the car about 7,000 miles, their attention was called to the fact that what they supposed to be a scratch was probably a break in the cowl. They immediately took the car to defendant, and were informed at its place of business that the supposed scratch was a break, caused by a defect in the construction of the car by not properly bracing the cowl.

Although defendant claims that the sale was made under the usual guaranty to remedy any defects that might appear within 90 days, and although this defect appeared after that time, defendant with plaintiff's consent, undertook to have the break welded, and to brace the cowl properly, which was made of aluminum, free of cost to plaintiffs. The mechanic hesitated to do the welding, because he doubted whether it would hold, but the welding was done notwithstanding. In doing it, the mechanic unavoidably burned the paint in the neighborhood of the break, and this necessitated the repainting of that part of the car. This work caused plaintiffs to lose the use of their automobile for a period of from four to six weeks.

Shortly after the car was returned to plaintiffs the cowl cracked in the same place. Plaintiffs immediately took the car back to defendant, who advised them that the proper thing to do would be to replace the aluminum cowl with a steel one. After some discussion, and a protest on the part of plaintiffs, the latter finally consented to accept the automobile with this change, provided the work was properly done. A new steel cowl was ordered from the factory, and upon its reaching Shreveport, the domicile of the defendant, it was put on the automobile by a special bodyman, sent to Shreveport by the manufacturer. After the new cowl was installed, it was necessary to paint it. In doing this work, it was found impossible to make the color exactly match the rest of the car. Plaintiffs therefore refused to accept the automobile in that condition. Defendant then ordered the entire car repainted. This was done, and plaintiffs then accepted the car.

On the day following this acceptance, the paint cracked all over the body of the car in a checkered manner, due to the fact that the new paint was applied on the old. Thereupon plaintiffs tendered the car to defendant, leaving it in the latter's possession, and notified defendant that they did not want the car.

After this tender was made, defendant, who had no intention of accepting the tender, sent the automobile to a paint shop, had all of the paint removed from it, and had it repainted. The record shows that this last painting was done in a thorough and workmanlike manner. Upon its completion, defendant notified plaintiffs of what had been done, advising them that the car was in proper condition, and that, unless they called for it within a specified time, they would be charged with storage. However, plaintiffs did not then care for the car. Moreover, in the meantime they had brought the present suit to rescind the sale and recover the price. They therefore refused to accept the car.

By a preponderance of the evidence it appears that the putting of a steel cowl on a car in a workmanlike manner, and the proper painting of the car after the removal of the old paint will have the effect of placing the car in as good a condition as if the defect had never existed. The evidence leads to the conclusion that the cowl was properly put on and that the last painting was properly done.

The foregoing are the facts, as we find them, when the case was submitted to the lower court for decision. The judgment of that court was in favor of defendant. Since the judgment was rendered, and while plaintiffs' appeal was pending, according to a statement in defendant's brief which, in...