Guess v. Lorenz
| Decision Date | 10 February 1981 |
| Docket Number | No. 42139,42139 |
| Citation | 612 S.W.2d 831 |
| Parties | 30 UCC Rep.Serv. 1529 Allen GUESS, Plaintiff-Respondent, v. Kathy LORENZ, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Paul J. Harris, Vatterott, Shaffar, Dolan & Pepka, St. Ann, for defendant-appellant.
Allen R. Guess pro se.
Respondent buyer sued to recover $500.00 of the cost of repairing a used automobile which he purchased from appellant seller. Respondent was awarded $250.00 in the small claims court. The case was then tried de novo without a jury in the circuit court resulting in a judgment for respondent in the sum of $256.00. The seller appeals.
Appellant charges the trial court erred in finding for respondent because respondent failed to prove either fraud or breach of warranty. Appellant's points are meritorious. The judgment is reversed.
Appellant advertised her car, a 1974 Datsun 260Z, for sale in a newspaper in November 1978 and respondent answered the ad. He examined and drove the car and asked appellant questions about its condition. Appellant told him she really liked the car and was selling it because she was buying another car. She pointed out the broken radio antenna, which she said could probably be replaced for about $12, and that the car needed paint and interior repair. Respondent asked appellant about the shocks, the brakes, transmission, engine, rear end, etc. and said, "she assured me that the car was in good shape at that point." During the test drive respondent noticed a noise in the back which appellant said was "just something the car does." Respondent also asked about the 90,000 miles on the car and appellant told him that these were mostly highway miles and not a lot of city driving. Appellant said she told respondent "the engine was sound and everything was running well for me, but I had not replaced anything on the car, except for the alternator."
Respondent purchased the car for $2,995.00. Within two weeks he replaced the rear tires, which were of odd sizes, for $104.00. On December 14, 1978 he took the car in for $218.35 of rear end work. He had the car tuned up for $93.00 and both carburators adjusted for $137.00. Respondent said that when he took the car in for repairs he was told the car needed shocks and a clutch. Respondent said he also learned that a new aerial would cost between $70.00 and $110.00 instead of the $12.00 mentioned by appellant.
Respondent telephoned appellant in late February or early March of 1979 and asked her if she would be willing to help pay for repairs to the car. She was not willing. Respondent then filed a suit in the small claims court which resulted in a judgment in his favor in the sum of $250.00. The appellant appealed to the circuit court where a trial de novo also resulted in a judgment for respondent, this time in the sum of $256.00. The trial judge did not make any findings of fact or arrive at any conclusions of law as a basis for his judgment.
On appeal to this court appellant argues that the respondent failed to allege and prove the elements of either fraud or breach of warranty. Both points are ruled in favor of appellant.
Appellant did not, at the time of formation of the sales contract, expressly agree to pay for later repairs to the 1974 Datsun 260Z. But can her statements to the effect that the car was "in good shape" and that the noise in the rear end was "just something the car does" be taken as express warranties of its condition at the time of sale?
Section 400.2-313, RSMo 1978 1 describes the creation of an express warranty:
"(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(2) It is not necessary to the creation of an express warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a specific intention to make a warranty, but an affirmation merely of the value of goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. " (Emphasis added.)
Respondent apparently considers the appellant's statements, to have been warranties of the car's good condition. But, under the circumstances here, the statements "the car is in good shape" and "that's just something the car does" are not express warranties of its condition. In Official Comment 8, 2 the draftsmen state the rationale of § 400.2-313(2):
(Emphasis added.)
The statements of the appellant in this case were very general. A seller may puff his wares or express his opinion as to the quality and value of his goods even to the point of exaggeration without incurring a warranty obligation. Turner v. Central Hardware Co., 353 Mo. 1182, 186 S.W.2d 603, 606(1-3) (1945).
Appellant was neither a car dealer nor a person who gave any impression of knowledge about cars. Considering all of the circumstances it would not be reasonable to find that her statements were express warranties of the car's condition and the trial court clearly erred in doing so if breach of warranty were the basis of the trial court's judgment.
Even if the statements could be construed as warranties of the car's condition at the time of sale, the evidence presented by the respondent is insufficient to support the finding of a breach. Respondent testified to the cost of work done on the vehicle but no evidence was offered to show that these repairs were necessary. The mere fact of subsequent repair does not demonstrate that at the time of sale the car was not "in good shape" for a used car which had been driven 90,000 miles. See Givan v. Mack Truck, Inc., 569 S.W.2d 243, 249 (Mo.App.1978). Respondent could not expect new car performance, particularly when he was told by the appellant that she had replaced nothing but the alternator.
Nor was there any implied warranty that the car was fit for ordinary purposes under § 400.2-314(2)(c). Implied warranties of merchantability apply only to "merchants" of goods in question by the terms of § 400.2-314(1). The appellant in this case was clearly not a "merchant" of used cars. 3
This court holds that no warranty, express or implied, was given and that no breach of an alleged warranty was shown. There is no evidence that appellant did not disclose all she knew about the noise in the rear of the car or that she concealed any other known material defect.
There is also insufficient support in the record for a recovery on the basis of fraud. Fraudulent misrepresentation consists of:
"(1) A false, material representation;
(2) the speaker's...
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