Jones v. Norman
| Decision Date | 07 February 1921 |
| Docket Number | No. 13827.,13827. |
| Citation | 228 S.W. 895 |
| Parties | JONES v. NORMAN. |
| Court | Missouri Court of Appeals |
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. Gill, Taylor & Gill, of Chillicothe, for respondent.
This is an action to recover the purchase money for an automobile based on rescission of sale because of fraudulent representations. There was a trial before the court without a jury and judgment went for defendant, whereupon the plaintiff appealed. The case has been submitted on briefs of the appellant; nothing being offered in defendant's behalf.
The evidence in plaintiff's behalf is to the effect that defendant, through his agent, Jacobs, in the year 1917, sold plaintiff a car for $775, representing to him that it was a new or unused car of 1917 model. The plaintiff was not acquainted with automobiles, and did not know their makes or models, but accepted and relied upon what was told him concerning the one in question, which, among the other things, was that the car could not be beat for service or climbing hills, and could be had at a bargain, to wit, $775, because defendant was trying to dispose of all the cars he had in order to become agent and make room for another make.
The car would not work. Plaintiff and his two sons endeavored to make it do so, but without success. The engine had no power and it was of no account, and the car was worthless. Complaint was made from time to time to defendant about the car, and the defendant always assured him the car was all right, but only needed some work thereon to put it in working order, and did some work thereon in his garage for which he made no charge. But the car was not put in running order and would not work, though plaintiff endeavored to make it do so as directed by defendant.
Plaintiff thereupon, about the latter part of June, 1917, took the car to another garage, and there learned for the first time that the car, when sold to him, was not a new, but was a secondhand, car, having previously been sold to, and used awhile by, another ; and he also learned that, instead of it being a 1917 model, it was a model of 1916.
Immediately upon learning this, plaintiff took the car back to defendant's garage, and, leaving it there, rescinded the sale because of the reasons stated. Defendant at first contended that he had not sold the car to plaintiff, but had sold it and several others to Jacobs, and that the latter, and not defendant, owned and had sold the car to plaintiff. But a few days after the car had been left at defendant's garage defendant called plaintiff on the phone, telling him an expert was coming from Kansas City to see what was the matter with the car, and asking plaintiff would he take the car if it were fixed all right and put in running order. Plaintiff replied he would have nothing more to do with it; and during the trial defendant admitted that he was the owner of the car at the time it was sold to plaintiff. Defendant's evidence shows that the price of a 1917 model was $910.
Appellant asked an instruction, which was refused (as were also certain other instructions hereinafter referred to), to the effect that; if defendant was the owner of the automobile in question and placed it in the hands of Jacobs to sell for him, and Jacobs, in order to sell the same to plaintiff, told the latter it was a new automobile and first-class, and plaintiff did not know said machine was not new, and, relying on said representations, bought said car, and that if the car would not run, and plaintiff took the car to defendant and requested him to fix it and see why the car would not run, and defendant informed plaintiff it was a good car and worked on it, and thereafter plaintiff undertook to run the car, but it would not do so, and while plaintiff was endeavoring in good faith to do so he learned that it was a secondhand...
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