Jones v. Norman

• Decision Date: 05 March 1923
• Docket Number: No. 14564.,14564.
• Citation: 248 S.W. 621
• Parties: JONES v. NORMAN.
• Court: Missouri Court of Appeals

248 S.W. 621

JONES v. NORMAN.

No. 14564.

Kansas City Court of Appeals. Missouri.

March 5, 1923.

Appeal from Circuit Court, Livingston County; Arch B. Davis; Judge.

"Not to be officially published."

Action by Robert W. Jones against Albert E. Norman. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Frank Sheetz, of Chillicothe, for appellant. John H. Taylor, of Milan, and Davis & Ashby, of Chillicothe, for respondent.

TRIMBLE, P. J.

This case is here for the second time on appeal by plaintiff. The opinion on the first appeal is reported in 228 S. W. 895. The facts are there fully set forth. However, it may be well to state briefly here that it is a case wherein plaintiff seeks to recover the purchase price of an automobile on rescission because of misrepresentations made in the sale thereof. The alleged misrepresentations were that the car was a new or unused car, a 1917 model, and that it "couldn't be beat for climbing hills or for service."

Plaintiff's evidence is that the car was not a serviceable car, and would not work. He bought it on February 6th but, on being unable to make it work, he was induced by defendant to keep it longer by the assurance that the car was all right and that defendant could and would fix it at his garage so that it would work, and the latter did endeavor to do so, but the car failed to work. Plaintiff, being unable to make the car run, took it to another garage, and there learned for the first time that it was not a `new car but had been sold before by defendant to a purchaser who had used it awhile, some months at least, and it had been run by him during that time about 2,000 miles, and he had then traded it back to defendant. Plaintiff also learned that the car was not a 1917 model but was one of an older make, and was a secondhand and not a new car when he bought it. Plaintiff was not acquainted, and had no experience, with automobiles, did not know their makes or models, and when he learned for the first time that the car was not a new but a secondhand car and was not a 1917 model, he returned it to defendant's garage and sought to rescind.

One of defendant's contentions was that plaintiff could not rescind because he had used the car after knowledge of the facts' and had not acted promptly in rescinding. Plaintiff's contention in answer to this is that, so far as concerns the defects of the car in that it would not run, he had been led, by defendant's assurances that he could make it so it would run and by his efforts to fix it so that it would work, to allow defendant a reasonable time in which to make the car work; and that, with regard to the car being a secondhand car instead of a new one, and a model of 1916 instead of 1917, plaintiff did not learn these things until he took it to the other garage, and that he thereupon promptly rescinded. Plaintiff also relies upon a waiver on the part of defendant of any right to claim that rescission was not promptly made, in that defendant, a few days after the car had been returned to the garage, tried over the telephone to get plaintiff to allow defendant to have an expert to fix the car, and made no objection to its return and a rescission of the sale on the ground that rescission was not promptly made.

Before going into the question of whether error was committed in the giving of defendant's instructions, it may be well for us to observe that we cannot say, as a matter of law, that plaintiff knew, or must have known, that the car was not a 1917 model because the model plate thereon showed otherwise. Furthermore, the representation that the car was a new one is not the same as the representation as to the date of its model. A purchaser cannot be compelled to accept or keep a car which has been represented to him as a new car when it is in fact a secondhand car. He has a right to insist on getting what he bargained for. To say to a purchaser that a car is "new" means more than that it is of the latest model. "New," under such circumstances, may and does include the idea that it is not a secondhand or used car. This is what was meant when it was said in the former opinion, p. 896, second column, "the fact that it was a secondhand instead of a new one was not apparent or open to inspection."

Going now to the instructions, complaint is made of defendant's instruction No. 1, which told the jury that, if plaintiff kept the automobile from one to four months or more, "after he had knowledge of all the...