Gentry v. Little Rock Road Machinery Co.
| Decision Date | 17 October 1960 |
| Docket Number | No. 5-2218,5-2218 |
| Parties | Joseph A. GENTRY, Appellant, v. LITTLE ROCK ROAD MACHINERY COMPANY, Appellee. |
| Court | Arkansas Supreme Court |
Jeff Duty, Rogers, Wayne Foster, Little Rock, for appellant.
Moore, Chowning, Mitchell, Hamilton & Burrow, Little Rock, for appellee.
This is a suit by the appellant for rescission of a conditional sales contract by which he bought a secondhand tractor from the appellee, for $6,875. The complaint asserted two grounds for cancellation of the contract: First, that the seller had made false representations about the condition of the tractor, and, secondly, that there had been a breach of an express or implied warranty. The chancellor granted rescission upon the second ground and entered a decree canceling the contract and adjusting the account between the parties. An appeal and cross-appeal bring the whole case up for review in the form of a trial de novo.
The really basic issue is the appellant's right to a cancellation of the agreement, either for fraud or breach of warranty. Gentry testified that in making the purchase he cautioned the appellant's salesman that he knew nothing about this kind of tractor and that he was relying upon the salesman's word as to the condition of the machine. Gentry says that the salesman, after receiving this warning, assured him that the tractor was in A-1 condition. The salesman disputes Gentry's testimony, but the chancellor found that the representation was actually made, and this finding cannot be said to be against the weight of the evidence.
The proof shows clearly enough that the tractor was not in A-1 condition and that the seller's repeated efforts to repair it were unavailing. We need not discuss this evidence, for the appellee does not, and indeed could not, contend that the machine was in A-1 condition.
The chancellor set aside the contract for breach of warranty despite the fact that the written agreement recites that the seller makes no express warranty with respect to the property and that the buyer waives any warranty implied by law. The appellee relies upon this contractual disclaimer of all warranties to support its argument that the trial court erred in decreeing a rescission of the agreement for breach of warranty.
It is true that we held in Moss v. Gardner, 228 Ark. 828, 310 S.W.2d 491, that § 71 of the Uniform Sales Act permits the parties to agree that all implied warranties will be excluded from their agreement. Ark.Stats.1947, § 68-1471. The Moss case involved a conditional sales contract, but we overlooked § 76c of our Sales Act, by which the legislature expressly excepted conditional sales from the operation of the statute. Ark.Stats. § 68-1479; Cloud Oak Flooring Co. v. J. A. Riggs Tractor Co., 223 Ark. 447, 266 S.W.2d 284. Hence § 71 of our Sales Act is not properly applicable to the conditional sales contract now before us.
We do not find it necessary to analyze in detail the appellant's asserted cause of action for breach of warranty, for we are convinced that the cancellation decree should in any event be affirmed upon the alternative ground of misrepresentation by the seller. In the circumstances of this case, where the purchaser was paying a very substantial sum, amounting to about 40 per cent of the price for a brand-new tractor, we do not regard the seller's representation as a mere expression of opinion and therefore not actionable. See Cannaday v. Cossey, 228 Ark. 1119, 312 S.W.2d 442. A representation that a used truck was in A-1 condition has been held to be a statement of fact and hence a warranty rather than a mere expression of opinion. Maurice v. Chaffin, 219 Ark. 273, 241 S.W.2d 257. By the same reasoning such a representation, when falsely made, gives rise to a cause of action in tort. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S.W.2d 490.
As a subsidiary argument the appellee insists that the appellant waived his right to rescission by not bringing...
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