Noel v. Garford Motor Truck Co.

• Decision Date: 22 July 1920
• Docket Number: 15711.
• Court: Washington Supreme Court
• Parties: NOEL et al. v. GARFORD MOTOR TRUCK CO. et al. SAME v. GARFORD MOTOR TRUCK CO.

191 P. 828

111 Wash. 650

NOEL et al. v. GARFORD MOTOR TRUCK CO. et al.

SAME v. GARFORD MOTOR TRUCK CO.

No. 15711.

Supreme Court of Washington

July 22, 1920

Department 1.

Appeal from Superior Court, King County; James B. Murphy, Judge pro tem.

Action by Frank Noel and another against the Garford Motor Truck Company, a corporation, and another, consolidated with an action by the corporate defendant against plaintiffs in the first action. From a judgment for plaintiffs, the named defendant appeals. Affirmed.

Kerr & McCord, of Seattle, for appellant.

Ryan &amp Desmond, of Seattle, for respondents.

MAIN J.

The two above-entitled cases were consolidated in the superior court and tried as one action. The subject-matter of the litigation was a motortruck. In one of the cases the plaintiffs were seeking to rescind the contract of purchase and recover their money back. In the other the seller was attempting to foreclose a lien for labor performed upon the truck. The trial court sustained the right of rescission, and entered a judgment accordingly. From this judgment the Garford Motor Truck Company appeals. The controlling facts are not in material dispute.

On May 26, 1918, Fred Noel, one of the respondents then residing at Yakima, came to Seattle and contracted for the purchase of a Garford motortruck. The truck purchased was at the time en route from the factory to Seattle. It arrived shortly before June 19, and was taken to the ship of the Commercial Garage to have a certain type of body placed on the chassis. On June 19, Fred Noel came again to Seattle, went to the Commercial Garage, received the truck, and drove it to the Garford Company's place of business some blocks distant in the same city. During this trip up town there were several grades, and the motor, when it arrived at the Garford place was heated to such extent that it stalled. The workmen of the Garford Company spent most of the afternoon checking up the motor, and Noel left late in the afternoon to drive the truck to Yakima. He was unwilling, owing to the fact that the motor had heated upon its first trip through the city, to make the trip to Yakima without assistance, and an employé of the Garford Company, a mechanic, accompanied him. The truck was run all that night, and arrived at Yakima late the following aftermoon. During the night it heated continuously; about every two hours the driver was forced to stop and let it cool off. Shortly after the truck arrived at Yakima it was driven a short distance on the road to tow in a broken-down car, and during this drive the motor heated and missed. The following morning the truck was taken to Sunnyside, and during this trip it also heated. After reaching Sunnyside it was put immediately to work hauling gravel, but could only make a few trips a day, while other trucks of the same make would make 10 or 12. The Garford Company was notified, and in a few days sent a mechanic from Seattle to put the truck in proper condition. After this the truck continued to heat when used, as before, and required frequent stops in order to cool it off. At different times subsequent other mechanics, upon complaint of the purchaser being made, were sent to look after the truck. It was operated at Sunnyside for a period of six or seven weeks when it was taken to Seattle. During the period that it was operated at Sunnyside it burned out four sets of wires, four sets of connecting rods, and a number of valves. When the car arrived at Seattle it was taken to the Garford Company's garage, and W. H. Krause, the sales agent who had sold the car, expressed his pleasure at the truck's being brought there, and said:

'We will see if we can fix it while you have it here. You need not worry about payment of the notes. Everything will be all right until your truck is either fixed up or we will do something.'

The truck was then placed in the garage, where it was thoroughly overhauled. A few days later it was delivered to Noel again, who sent it out to haul gravel from the water front in Seattle to a paving job on Ranler avenue. During the first trip the motor heated and missed, and the driver, when he reached the top of the grade, was compelled to stop and let it cool off. He finally delivered the load, and started back to the city. On the return the motor continued to miss and as he attempted to cross the car tracks it stalled, and approaching street car rolled into it, causing serious damage to the frame and other parts of the truck. The truck was...