Studebaker Bros. Co. of Utah v. Anderson

• Court: Utah Supreme Court
• Writing for the Court: CORFMAN, J.
• Citation: Studebaker Bros. Co. of Utah v. Anderson, 167 P. 663, 50 Utah 319 (Utah 1917)
• Decision Date: 10 September 1917
• Docket Number: 2975
• Parties: STUDEBAKER BROS. CO. OF UTAH v. ANDERSON et al

167 P. 663

50 Utah 319

STUDEBAKER BROS. CO. OF UTAH v. ANDERSON et al

No. 2975

Supreme Court of Utah

September 10, 1917

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by the Studebaker Bros. Company of Utah against William Anderson and another.

Judgment for defendants. Plaintiff appeals.

AFFIRMED.

Marioneaux Straup, Stott & Beck for appellants.

APPELLANT'S POINTS

Our contention is that no warranty of condition was ever pleaded or proved by the defendants. The allegations of the complaint are, and the testimony of Mr. Anderson is, that the plaintiff "warranted and guaranteed the car to be as good as new and in perfect condition and fit for the use for the carrying of passengers to and from the New Grand Hotel at Salt Lake City, and in every way capable of doing the work for which it was intended."

To say that a second-hand car is as good as new and in perfect condition and fit for carrying passengers, and capable of doing the work for which it was intended, is nothing but the expression of an opinion and does not amount to a warranty. (Morley v. Consolidated Manufacturing Co., 81 N.E 993; Warren v. Walter Automobile Co., 50 Misc (N.Y.) 605, 99 N.Y.S. 396; Motor Company v. McKenna, 138 N.Y.S. 491; Motor Company v. Osborne, 140 Ill.App. 633; Smith v. Bolster, 125 P. 1022; Milwaukee Rice Machinery Co. v. Hancock, 115 Wis. 422, (91 N.W. 1010); 28 Cyc., page 44.) If there had been a warranty of condition by the seller, the buyers' remedy would have been an action for damages to recover the difference between the value of the car in the condition warranted and its value in the condition in which it was.

"Where the article furnished by the seller is not such in kind, quality or condition as it was expressly or impliedly warranted to be, the direct and natural loss to the buyer who keeps it is obviously the difference between the value of an article of the kind he was entitled to receive, and the value of the article which he has in fact received. For this loss he is entitled to compensation." (Mecham on Sales, Section 1817.)

"He is not entitled to return the property to the seller and rescind the agreement of sale." (Mecham on Sales, Section 1805.)

It is not necessary to cite any authority that if one has a right to rescind for breach of warranty of condition, he waives the right to rescind if, upon discovering the breach of warranty, he consents to the seller's repairing the property. Repairs or alterations under such circumstances is nothing less than making good the warranty. A purchaser who consents to the repair of the property impliedly assures the seller that if such repairs are made he will be satisfied. (Gentilli v. Starace, 30 N.E. 660, 14 N.Y.S. 764; Aultman & Co. v. McKinney, 26 S.W. 266; 35 Cyc., page 428; Gaar-Scott & Co. v. Halverson, 105 N.Y. 109; Aultman Co. v. Donnell, 60 P. Rep. 482.)

Boyd, DeVine & Eccles and Soren X. Christensen for respondents.

RESPONDENTS' POINTS

In the case of Milwaukee Company v. Hancock, cited by counsel, the court held that the representation that it "was as good as new in every point and particular" is an assertion of a physical fact amounting to a warranty upon which the purchaser may rely. Even in the absence of an expressed warranty that it is fit for a particular purpose, if the buyer informs the seller that he is buying it for a particular purpose, there is an implied warranty, a breach of which will justify a decision. (35 Cyc. 399, Subdivision iii, and authorities cited.) Here, however, there was a direct affirmation that the automobile was suitable for a particular purpose, and it became an express warranty. (Clark v. Johnston & Company, 42 S.W. 844 [Ky.]; Young v. Natta, 88 S.W. 123 [Mo.]; Conkling v. Standard Oil, 116 N.W. 822 [Iowa].) The rule of law as to the sale of automobiles is not different from that relating to any other class of personal property. The general rule as to the remedies of a buyer on a breach is as follows:

"The remedy of the buyer for a breach of warranty in the sale of goods may be by a return of the goods, the contract being rescinded, and recovery of the price paid, by an action for damages or by a counter-claim or recoupment in an action by the seller for the price." (35 Cyc. 434 [Subdivision J].)

CORFMAN, J. FRICK, C. J., and McCARTY, THURMAN, and GIDEON, JJ., concur.

OPINION

CORFMAN, J.

This was an action brought by the plaintiff in the district court of Salt Lake County to recover a balance due on a promissory note of the defendants given for the balance of the purchase price of an automobile. The complaint is in the usual form of an action upon a promissory note, alleging execution, delivery, and nonpayment on the part of the defendants and ownership of the note by the plaintiff. Briefly stated, the answer denies the execution and delivery of the note for a consideration; admits nonpayment; alleges that the note was obtained from the defendants by reason of fraud and deceit on the part of the plaintiff. For a further answer, and by way of counterclaim against the plaintiff, the answer affirmatively alleges that the plaintiff, on March 31, 1913, sold to the defendants a certain Garford automobile for $ 1,400, the defendants then paying $ 700 and giving their note for $ 700; that at the time of the sale plaintiff warranted and guaranteed the automobile to be good as new, in perfect condition, and fit for the use of carrying passengers to and from the New Grand Hotel at Salt Lake City, and in every way capable of doing the work for which it was intended; that on April 1, 1913, the automobile was delivered to and received by the defendants, they relying on the said representations of the plaintiff; that upon receipt of the automobile, and after attempting to use it in a proper and workman-like manner, the defendants found the automobile to be out of repair and incapable of being operated; that the defendants thereupon returned the car to the plaintiff and demanded a refund of the $ 700 paid by the defendants on the purchase price. Defendants prayed for judgment against the plaintiff for $ 700, with interest, cancellation of the note, and costs of suit. The plaintiff's reply, in effect, was a denial of all of the allegations of the counterclaim except that therein plaintiff admitted that the automobile was out of repair and alleged that it was returned to plaintiff for repairs and received by plaintiff for that purpose, and also alleged that the car was purchased by defendants as a second-hand automobile after they had tested it and concluded that it was a good bargain at $ 1,400 with the exception of making such repairs as might be necessary to put and keep it in such condition as the defendants desired to have it. Trial was to a jury, resulting in a verdict for the defendants, upon which judgment was entered in defendants' favor as prayed for in their counterclaim. Motion for a new trial was made by plaintiff. The same was denied. Plaintiff appeals.

Plaintiff assigns as errors: The rulings of the court in the admission and rejection of testimony over plaintiff's objections; the refusal of the plaintiff's requests for a directed verdict in favor of plaintiff, and the denial of plaintiff's motion for a new trial on the grounds that the verdict of the jury was contrary to law, the evidence, and the instructions of the court. However, as the case is presented here on brief and argument of counsel, but one question is involved, namely, Is the verdict of the jury, and the judgment entered thereon, contrary to law and the evidence?

It was pleaded in the counterclaim of defendants that at the time of the purchase of the automobile in question plaintiff "warranted and guaranteed the said car to be as good as new and * * * fit for the use of the carrying of passengers to and from the New Grand Hotel at Salt Lake City, and in every way capable for doing the work for which it was intended." William Anderson, one of the defendants and manager of the Grand Hotel Company, the other defendant, relative to the car being guaranteed, testified as follows:

"March, 1913, I called on the plaintiff for the purchase of a car. I met Mr. Duffin. He was salesman for the company. I told him I was looking to buy a hotel bus or carryall, something to convey people to and from the New Grand Hotel and the depot. Mr. Duffin says: 'We have exactly what you want. Here is a car just--the engine in this car has just been overhauled by ourselves, in their own shops, and we guarantee this car to be in perfect condition to go on the road just for such purposes as you want it.' And I told him there was no necessity for any demonstration as far as the engine was concerned, that the Studebaker's word was good enough for me, and I knew nothing about an engine anyway; I am not an expert with an automobile."

Duffin, the plaintiff's salesman, testified concerning the sale:

"The first conversation with Mr. Anderson, he came in and wanted to know if we had a car that would suit his purpose for hauling passengers from the hotel to the depot and back. I told him we had just such a car on the floor, * * * I told him the car had been recently overhauled and was in good condition. * * * Car was in good condition to do this work. * * * I didn't say to him we guaranteed the car to be as good as new. Never mentioned guaranty to Mr. Anderson or his chauffeur."

The evidence conclusively shows that immediately after the defendants purchased the car it would not run. It was taken back for repairs and adjustments at the plaintiff's place of business daily, and the plaintiff failed, after repeated efforts, to put it in condition so that it could be operated.

Further testimony was given by the defendant Anderson in regard to defendants...