Jones v. Norman

• Citation: 24 S.W.2d 191
• Decision Date: 27 January 1930
• Docket Number: No. 16462.,16462.
• Parties: JONES v. NORMAN.
• Court: Missouri Court of Appeals

24 S.W.2d 191

JONES v. NORMAN.

No. 16462.

Kansas City Court of Appeals. Missouri.

January 27, 1930.

Appeal from Circuit Court, Livingston County; Ira D. Beals, Judge.

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

Taylor & Taylor and Davis & Ashby, all of Chillicothe, for appellant.

S. L. Sheetz, of Chillicothe, for respondent.

BOYER, C.

Action to recover purchase price of an automobile based upon rescission of sale. The suit was instituted August 16, 1917, and the case has heretofore made two appearances in this court. 228 S. W. 895; 248 S. W. 621. The case was reversed each time upon the appeal of plaintiff. It was first reversed because of the erroneous refusal of instructions requested by plaintiff, and on second appeal was reversed because of erroneous instructions given for the defendant. This time judgment was for plaintiff and defendant appeals. It is apparent that the evidence upon the last trial is somewhat different from that upon the previous trials, and that the determination of the questions presented to the court heretofore are not decisive of the questions raised on this appeal. The principal point raised on this appeal is that plaintiff failed to prove that there was in fact a rescission prior to suit.

Approaching this question, we will set out the main part of the petition and detail that part of the evidence material to the question raised. The body of the petition states the case this way:

"That defendant, his servants and agents, exhibited to plaintiff an automobile and represented to plaintiff that the same was new and had never been used and was a first class machine in every particular; and that he could purchase the same for the sum of seven hundred and fifty-five dollars; that plaintiff did not know that said machine was not a new one, and relying on said representations aforesaid, purchased said automobile of defendant on February 10th, 1917, and paid him the sum of seven hundred and fifty-five dollars therefor; that said automobile was not a new machine, but was a second hand machine, and would not run and was continually out of fix and needing repairs, and new fixtures and apparatus; that plaintiff, after keeping said machine for some months and endeavoring to make it run, learned that it was a second hand machine, and would not run, and immediately after learning that fact he returned the machine to defendant and demanded the sum of seven hundred and fifty-five dollars of him, which sum defendant refused to pay, to the damage of the plaintiff in the sum of seven hundred and fifty-five dollars and interest from February 10th, 1917, for which he asks judgment and costs of suit."

The answer was a general denial.

The evidence on behalf of plaintiff tended to show that the defendant was engaged in selling automobiles in the town of Chillicothe under the name of the Chillicothe Motor Company; that on the 6th day of February, 1917, one Jacobs, agent for defendant, took a certain Oakland automobile to the neighboring town of Dawn, where plaintiff lived, in order to sell him the car; that the said Jacobs, among other things, stated and represented to plaintiff that he was offering a bargain; that defendant was changing agencies and had to get the Oakland cars out of the way; that it was a new car and a 1917 model; that they had some second-hand cars, but that he did not bring one of them down because the agent was aware that plaintiff would not buy one; that the car was first-class, in good mechanical condition, was a real car, and that the Oakland could not be beat; the car was priced at $775, and finally bought by the plaintiff for $755. Plaintiff paid $200 by check and gave his note to the Chillicothe Motor Company for the remainder. It was later paid at a bank to which it had been transferred. The car was delivered to plaintiff on the 10th day of February, 1917. He did not drive it himself. It was driven mainly by his son, 16 years of age. Shortly after the car had been delivered, plaintiff discovered that it did not run extra good; that it worked pretty nice on level ground, but "if you had a hill to pull it got sluggish; didn't seem to have power and pep to it"; that one week after the delivery of the car he and his son drove to Chillicothe to defendant's garage and before he had time to say anything to defendant, defendant said: "Drive in, it looks like you have a pretty good car there." Plaintiff replied, "We don't think so;" and when asked what was the matter, said, "Well, it don't seem to have any power;" and defendant replied, "Well, it just needs a little adjusting of the carburetor," and called one of his men to do some adjusting. Thereafter the car ran about the same as it did before. That the car was returned to defendant's garage 4 or 5 or 6 times from the time that plaintiff purchased it until the latter part of the month of June; that the car was unsatisfactory for the reason that it failed to develop speed and lacked power; that at the time he purchased it, it looked like a new car; there was nothing about it to indicate it was a second-hand car; that in purchasing the car he relied on what the agent said, and if he had known it was a used car he would not have bought it; that about the 25th of June, he discovered that the car had previously been sold to another man, and about the last of June, he had the car driven to defendant's place of business where he left it, informed defendant that he had returned the car, and demanded the amount of the purchase price; that, about 10 days after he had returned the car, defendant called him on the telephone and informed him that there was an expert there, or an expert coming, and wanted to know if plaintiff would allow that expert to examine the car, and if defendant would put it in satisfactory running order whether plaintiff would be willing to take it; plaintiff declined to have anything more to do with it.

The evidence further shows that on cross-examination of plaintiff he admitted that there was a speedometer on the car and about one week after he had purchased the car he noticed that the car had been run about 2,300 miles and that the speedometer showed between two and three thousand miles. Then these questions and answers:

"Q. Now, what did that show to you, what did you gather from that? A. That didn't amount to a hill of beans in my estimation, if the car give good satisfaction, if it run properly.

"Q. Well, then, that would not make it a second-hand car? A. Why, sure, if I had knowed it had been sold out to the country before.

"Q. Well, as I understand you, that wouldn't have amounted to a hill of beans, and wouldn't have showed that it was a second-hand car, the fact that it had been run 3,000 miles? A. No."

Plaintiff further admitted that about the 1st day of June he attempted to trade the Oakland car to defendant for two Ford cars, but could not make a trade. Plaintiff said: "I wanted to get rid of that Oakland for something." The evidence further shows that plaintiff and plaintiff's son were encouraged to continue driving the car by assurances from defendant that it was a good car and that it would give satisfactory service. The car was a 1916 model, and in the summer of that year had been sold to another man and had been used and run a distance of 1,800 or 1,900 miles, when that owner traded the car back to defendant a short time before the car was sold to plaintiff. The evidence on behalf of defendant tends to show that no false representation was made about the car; that it was a used car and that plaintiff was so informed; that it was a 1916 model; that the wear upon the tires was indicated to him, and that one of the tires had a cut upon it; that plaintiff demanded a new tire in the trade and that a new tire of the value of $28.80 and tube of the value of $2.80, one month's storage at the cost of $5, and four months' interest on plaintiff's note were all furnished to plaintiff as a condition and as a part of the sale. The evidence in reference to the additional items furnished with the car is not denied by the plaintiff. Defendant's evidence further tends to show that the car was in good mechanical condition, and that the trouble that plaintiff had in running the car was due to the mismanagement of it by his young son in failing to properly oil and otherwise care for it; that plaintiff never indicated at any time his intention or desire to return the car or rescind the sale until the 30th day of June, when the car was returned and a demand made for the money; at that time defendant informed plaintiff that he could not do that, and that plaintiff would not get the money. There is no evidence of a mutual rescission. There is no evidence in the record that anything was returned or tendered to the defendant, except the automobile itself. Appellant contends that the extras furnished with the car, and the expenditures made for plaintiff's benefit, were not in fact returned or offered to be returned. Respondent contends that the extra tire was returned with the car; but there is no evidence whatever in the record upon the subject, and there is no testimony that plaintiff offered to refund any money paid, or agreed to be paid, for his benefit, or any one of the items of property furnished him with the car when it was purchased. There was much other testimony which we deem unnecessary to detail.

The case was submitted to the jury upon instructions and ten jurors returned a verdict for plaintiff in the sum of $755. Defendant duly appealed, and insists (1) that the court erred in refusing to give a peremptory instruction directing the jury to find for defendant; (2) that the court erred in submitting the case to the jury on plaintiff's instruction 1; and (3) that the verdict was contrary to the evidence and against the law under the evidence. There are also other assignments which will have attention.

Opinion.

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