Moore v. Smith

• Decision Date: 02 October 1923
• Docket Number: No. 17360.,17360.
• Citation: 255 S.W. 1071
• Parties: MOORE v. SMITH et ed.
• Court: Missouri Court of Appeals

255 S.W. 1071

MOORE v. SMITH et ed.

No. 17360.

St. Louis Court of Appeals, Missouri.

October 2, 1923.

Rehearing Denied November 2, 1923.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by John Moore against Cleve Smith and Hanson Smith, composing the firm of Smith Bros. Auto Company. Judgment for plaintiff, and defendants appeal. Affirmed.

Rodgers & Buffington, of Mexico, Mo., and Emil P. Rosenberger, of Montgomery City, for appellants.

A. C. Whitson, of Mexico, Mo., and Hostetter & Haley, of Bowling Green, for respondent.

NIPPER, C.

This is an action for damages brought by plaintiff against defendants, in which he alleges that defendants defrauded him in the purchase of an automobile. The defendants did not offer any evidence to refute that of plaintiff and his witnesses. We shall therefore state the facts as they appear from plaintiff's evidence.

The defendants were automobile dealers at Mexico, Mo. Cleve Smith was in the active charge of the business. Plaintiff purchased of defendants a Willys-Knight automobile, for the sum of $1,250, by giving his note, due in six months, and a mortgage on property owned by himself and wife. Plaintiff and his wife signed the note. Plaintiff was a colored man, and operated a farm about four miles from Mexico. The Willys-Knight car was a failure, and when plaintiff protested to defendant Cleve Smith he was told to go home and be satisfied, and when he came into town on what was called "Dollar Day" he (Smith) would give him a brand new 85—4 Overland. The first day he went back he was told the Overland was not ready; the second trip he met with a like statement; the third time plaintiff got the car and was told by Smith that it was a "brand new car" except that it had been slightly used for demonstrating purposes. It appears that a new 85—4 Overland cost and was worth at that time about $1,080. Plaintiff was anxious to obtain an automobile, but we think it clearly appears from all the evidence that he knew very little about them. It appears that the' note executed by plaintiff and his wife was transferred to a local bank in Mexico. When plaintiff got the Overland car, which was sold to him as a new car, but was merely an old secondhand car repainted and made to appear to the unsuspecting as new, he soon discovered that it would not start, and in many instances would not stop after it started, as plaintiff stated that the brakes failed to work, and that, when he decided when passing defendants' garage on one occasion to stop his car, he put on the brakes, but "it kept plumb on."

Some of the mechanics who worked on this old Overland before it was sold or traded to plaintiff stated that when the car was brought to the garage it appeared in a wrecked condition, and these mechanics, who were working for defendants, ground the valves, put in a new spring, overhauled the engine generally, tightened the bearings, and did about everything but make a new car. Plaintiff, however, as stated, was not acquainted with the make-up or operation of automobiles, and, when asked if he did not notice that the tires were worn, stated that he had never seen a "blow-out." It appears that defendants were to give plaintiff a year's free repair service at the time he traded for the Overland. After keeping the Overland for a few months, and discovering that it was an old secondhand car and would not give satisfaction, and that defendants were unable to comply with the requirements of the contract of sale, plaintiff took the car back, and left it at defendants' garage. It appears that defendants took possession of the car, but whether or not it was ever successfully used, the record is silent.

Plaintiff's counsel makes certain objections to defendants' abstract of the record etc.; but, without going into them in detail, suffice it to say that we do not think these objections meritorious, or that they can be sustained.

The court gave one instruction at the request of plaintiff, and six at the request of defendants. Instruction No. 1 given for plaintiff is as follows:

"The court instructs the jury that if you find and believe from the evidence in the cause that on and prior to the _____ day of May, 1919, the plaintiff was the owner of a Willys-Knight automobile which he had previously purchased from defendants for the sum of $1,250, and that a controversy had arisen between plaintiff and defendants as to whether the said Willys-Knight automobile fulfilled the representations as to its qualities and condition made to plaintiff by defendants at the time of its purchase, and that as an inducement to plaintiff to exchange said Willys-Knight car with defendants for another car the defendants through Cleve Smith falsely represented to plaintiff that they would give plaintiff a new Overland car of an 85—4 model, and if you further find that plaintiff relied solely on such representations and exchanged his Willys-Knight car for such Overland car believing such Overland car to be a new car other than having been used in demonstrating, and if you further find that said Overland car was not at the time of such exchange a new car, but that the same was worn and had been used, other than in demonstrating, and was in point of fact a secondhand car, and that defendants knew at that time such to be a fact, then you are instructed to return a verdict in favor of the plaintiff and you should assess the amount of his recovery at the difference between the reasonable value of a new car of 85—4 model and the reasonable value of the secondhand car which defendants delivered to plaintiff."

Instruction No. 1, given at the request of defendants, informed the jury that, unless plaintiff proved by a greater weight of the evidence that Cleve Smith represented to the plaintiff that said Overland car was a new car, and that plaintiff believed said statements and representations and relied thereon, and purchased said car solely because plaintiff believed it to be a new car, then plaintiff could not recover.

Instruction No. 2 told the jury that, if they believed that after plaintiff had purchased the Willys-Knight car a controversy arose between plaintiff and defendants as to the representations concerning the Willys-Knight car, and that afterwards plaintiff and defendants agreed that the Willys-Knight car should be returned to defendants, and plaintiff receive an 85—4 Overland, and that such exchange was consummated, then it becomes immaterial whether the representations made...