Hieronymous Motor Company v. Smith

• Decision Date: 24 November 1931
• Citation: 241 Ky. 209
• Parties: Hieronymous Motor Company et al. v. Smith.
• Court: United States State Supreme Court — District of Kentucky

Page 209

241 Ky. 209

Hieronymous Motor Company et al. v. Smith.

Court of Appeals of Kentucky.

Decided November 24, 1931.

1. Sales. — That no contractual relation appeared between distributor, allegedly warranting automobile and buyer subsequently purchasing it from distributor's vendee, required peremptory instruction for distributor.

2. Trial. — Instruction authorizing verdict against sellers held erroneous, since assuming sellers and their vendor both liable as sellers for alleged warranties by sellers' vendor to purchaser.

This is so, since under pleading and proof the sellers of an automobile were not bound by warranties or representations alleged to have been made previously by their vendor to purchaser, subsequently buying the car from the sellers.

3. Appeal and Error. — Error in charge held waived by not excepting.

4. Sales. — Verdict for buyer of automobile held against weight of evidence, failing to show that sellers made alleged representations respecting speed and gasoline consumption, and that buyer operated car four thousand miles before returning it.

Appeal from Lee Circuit Court.

ROSE & STAMPER and BEATTY & BEATTY for appellants.

T.B. BLAKEY for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Reversing.

For the balance of the purchase price of a Chrysler automobile, Francis Smith executed and delivered to the Hieronymous Motor Company, a partnership composed of W.S. Hieronymous and W.L. Jones, a note for $1,282.25 payable in monthly installments of $106.85. This note was secured by a mortgage upon the automobile purchased by Smith, and these instruments provided, that in default of payment of any installment when due, the full amount of the note at the option of the holder became due and collectable. Thereafter, and before the first installment became due, the note was assigned to Mr. C. Beach. The first installment was paid to Mr. Beach when due, but the maker defaulting in payment of other installments, Mr. Beach instituted suit against him in the Lee circuit court asking for judgment for the balance due on the note and for the enforcement of the lien.

By answer, counterclaim, cross-petition and numerous amendments thereto, Smith made the Hieronymous Motor Company, John Jones, C. Beach, the Kinkead Wilson Motor Company, and the Chrysler Sales Corporation parties to the action, alleging that W.S. Hieronymous, W.L. Jones, C. Beach, and John Jones, were partners composing the firm of Hieronymous Motor Company; that that company and the Kinkead Wilson Motor Company warranted and represented to him as an inducement to purchase the automobile that it would attain a speed of at least 75 miles per hour and would make from 12 to 16 miles per gallon of gasoline; that he was furnished with pamphlets and literature issued by the Chrysler Sales Corporation containing a description of the various models of Chrysler automobiles, including the model purchased by him in which it was represented that this particular model would travel 75 miles or more per hour; that the Chrysler Sales Corporation stood behind and guaranteed all statements contained in said pamphlet. He further alleged that he purchased the automobile for speed and would not have purchased it but for the representations and warranties made to him; that the automobile purchased by him could not attain a rate of speed in excess of 60 miles per hour; and would not make more than 6 or 7 miles per gallon of gasoline. He alleged that by reason of failure of the warranties, he had been damaged in the sum of $831.87.

By appropriate pleadings, the issues were completed. The court sustained a motion of the defendant Smith for an issue out of chancery to try before a jury the question of fact as to whether or not the automobile in controversy was defective and not as represented when sold to him.

The evidence discloses that the Kinkead Wilson Motor Company is a partnership engaged in business in Lexington, and had a distributor's contract with the Chrysler Sales Corporation carrying the right to sell Chrysler motor vehicles in a number of counties in Kentucky, including Lee and Owsley. Motor vehicles were sold outright by the Chrysler Sales Corporation to the company. The Hieronymous Motor Company is a partnership composed of W.S. Hieronymous and W.L. Jones, and engaged in business in Beattyville. Under a contract between the two companies, the latter were dealers with the right to sell Chrysler Motor vehicles in the counties of Lee and Owsley. The former sold and delivered automobiles direct to the latter; the sales and transfers being evidenced by bills...