Smithpeter v. Mid-State Motor Co.

• Decision Date: 02 July 1934
• Docket Number: No. 18078.,18078.
• Citation: 74 S.W.2d 47
• Parties: SMITHPETER v. MID-STATE MOTOR CO.
• Court: Missouri Court of Appeals

74 S.W.2d 47

SMITHPETER v. MID-STATE MOTOR CO.

No. 18078.

Kansas City Court of Appeals. Missouri.

July 2, 1934.

Rehearing Denied July 16, 1934.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by F. W. Smithpeter against the Mid-State Motor Company. From a judgment of the circuit court, on appeal from the justice court, for the plaintiff, defendant appeals.

Affirmed.

Jones & Wesner, of Sedalia, for appellant.

W. W. Blain, of Sedalia, for respondent.

REYNOLDS, Commissioner.

This is an action for damages for fraud and deceit, based upon alleged false and fraudulent representations made by appellant to respondent with respect to a certain Dodge coupé motorcar sold or traded to respondent by it, to the effect that it was new and unused, upon which representations respondent claims to have relied and by which he was induced to trade for or purchase it.

It seems that appellant, a corporation located at and doing business at Sedalia, Mo., was an authorized dealer in Dodge Brothers' motor vehicles, and on November 21, 1932, through its salesman and representative, one Warren, sold or exchanged the car in question to respondent as a new and unused car for a certain Willys-Knight car delivered by respondent to it and for the further payment by respondent to it of the sum of $500 in cash. The cash sale price of a new and unused Dodge car of the type traded respondent was, at that time, about $1,090. During the negotiations for the sale or exchange, the respondent stated to appellant's agent, referring to the car in question: "If it has been driven, I don't want it. I wouldn't buy a car under any consideration that has been driven to amount to anything." In reply, the agent said: "This car has been driven by me, the only one, and it has only been driven to Smithton to see you twice." It would further appear that the distance so traveled in going to Smithton and back to Sedalia on the two occasions mentioned, including the distance traveled in demonstrating the car to respondent, was about 38 miles. It further appears that the car in question had been obtained from the Central Motor Sales Company, a Dodge dealer in Springfield, Mo., and a stockholder in appellant, and had been driven from Springfield, a distance of about 125 miles, by Mr. Orr, the manager of appellant at Sedalia, and placed on sale at appellant's place of business at Sedalia. There is also evidence to the effect that Warren, the representative who made the sale, had no knowledge of such fact at the time of the sale. The manager, Orr, testified that he apprised respondent of such fact at the time he was negotiating the purchase. Respondent, however, denies that he was so informed until long after he had purchased the car and had been using it. There is also evidence that the Central Motor Sales Company had the car at Springfield for six months prior to the time it was brought to Sedalia by Orr. There is no claim on appellant's part that it disclosed to respondent that the car had been at Springfield for six months before having been brought to Sedalia. It further appears from the evidence that, upon the day following the delivery of the car to the respondent, the oil therein was found to be black, and that, upon being changed, the new oil therein changed to black after the car had been used a short distance, and that it was necessary to change the oil on account thereof every 200 miles the car was driven. There was evidence from which it could be found that this was occasioned by a damaged engine from excessive heating. It was also found necessary to change the spark plugs after the car had been used by respondent in driving to Smithton and back to Sedalia. The respondent testified that he was an experienced handler of cars and that he used the car in question carefully from the beginning and in accordance with the instructions given by the dealer as to the rate of speed and other particulars. Upon an inspection made at the place of business of appellant by appellant's servants, shortly after the sale of the car, it was found that the cylinder walls of the engine were badly scored and the pistons damaged and that the car was perhaps otherwise out of condition. The car, at this time, had been driven not exceeding one or two thousand miles. From the respondent's testimony, it would appear that appellant thereupon offered to repair the engine by rehoning and putting in new pistons, which offer he declined, insisting that he had purchased the car for new and he wanted a new engine block, including the parts necessary to fix it, which appellant declined to do as unnecessary. The evidence tended to show that the scoring of the cylinder walls and pistons follows from excessive heat in the using of the car and lack of oil; that, in a new car, the oil should last from 600 to 1,000 miles and should not turn black in less than 600 miles; that, in a new car, the spark plugs should last from 10,000 to 20,000 miles and should not prove unserviceable and require changing in less than 10,000 miles' use. The evidence further shows that respondent, upon his first discovery of the blackness of the oil—which was the day following the delivery of the car and after he had driven it to his home at Smithton only—complained to appellant's agent who had sold it to him and repeatedly thereafter until, as the condition continued, after about six weeks' and 1,500 to 2,000 miles' use, he was referred to Mr. Green of appellant's place of business, where, in the presence of Mr. Orr, the appellant's manager, the car was inspected and the engine opened up and the conditions of the cylinders and pistons disclosed.

At the time of the purchase, a written contract was entered into, by which the car was sold as a new car, upon certain agreements therein set out and warranties therein expressed to be to the exclusion of all implied or other warranties.

The case originated before W. R. Large, a justice of the peace of Sedalia township, Pettis county, on April 20, 1933, by the filing by respondent of a statement of his cause of action before said W. R. Large as said justice and was transferred to the circuit court of Pettis county upon an appeal by appellant from a judgment rendered in said cause by said justice. It was thereafter tried anew in the circuit court of Pettis county on September 22, 1933, before the court and a jury, upon an amended statement filed in said court and an answer in writing thereto, including a general denial and, in substance, an affirmative defense of no liability under the written contract for the matters complained of in the statement, in that appellant had limited its liability to breaches by it of certain express warranties therein set out which were exclusive of any and all other warranties, from a breach of which liability might otherwise have arisen and for the reason that respondent had failed so to comply with the obligations upon his part under said contract as to bring himself within the terms of the special warranties expressed therein so as to render appellant liable to him or to entitle him to recover herein.

The jury returned a verdict for respondent in the sum of $200, upon which judgment was accordingly rendered, from which judgment— after unsuccessful motions for new trial and in arrest—this appeal is prosecuted.

Opinion.

1. The appellant assigns as error the refusal by the trial court of instructions directing a verdict in its favor, requested by it at the close of respondent's case in chief and again at the close of the whole evidence. The consideration of the complaint with reference to the refusal of such instruction sought at the close of respondent's case in chief has been foreclosed by the action of appellant in the introduction of its evidence in defense after such instruction was refused. However, the complaint as to the refusal of such instruction at the close of the whole evidence is for our consideration. Appellant contends that the judgment is not supported by the evidence; that, this being an action for damages based upon fraud and deceit, the burden was upon respondent to show actual fraud by deception intentionally practiced upon respondent, by which respondent was induced to purchase the car in question and pay therefor the consideration disclosed; that respondent has failed to meet such burden.

It is true, as contended, that, in cases of this character, the vendee, in order to show a cause of action for damages, must show: (1) That false representations of a material fact or facts were made by the vendor with intent to deceive; (2) that the vendee believed the representations to be true and relied upon them and by reason thereof was induced to act upon them. Stratton v. Dudding, 164 Mo. App. 22, loc....