Touchstone v. Bond

• Citation: 223 Miss. 487,78 So.2d 463
• Decision Date: 16 March 1955
• Docket Number: No. 39528,39528
• Parties: R. L. TOUCHSTONE, d/b/a Touchstone Motor Sales, v. W. W. BOND.
• Court: Mississippi Supreme Court

Page 463

78 So.2d 463

223 Miss. 487

R. L. TOUCHSTONE, d/b/a Touchstone Motor Sales, v. W. W. BOND.

No. 39528.

Supreme Court of Mississippi.

March 16, 1955.

E. C. Fishel, Hattiesburg, for appellant.

Ben H. Walley, Leakesville, for appellee.

ROBERDS, Presiding Justice.

This suit was filed in the circuit court by Touchstone to recover a personal judgment against Bond for the unpaid purchase price of an automobile sold by Touchstone to Bond. Bond denied he owed any amount. He said he was induced to purchase the car by false and fraudulent material representations as to the condition of the Mercury car sold to him by Touchstone, vesting in him the right to rescind the contract, and also the right to recover from Touchstone $270, the value of a Ford car he delivered to Touchstone as the down cash payment on the Mercury automobile. Bond filed a counterclaim and asked for judgment for $270. The jury found against Touchstone and returned a verdict in favor of Bond in the sum of $135. Judgment was entered accordingly. Touchstone appealed to this Court.

The main ground urged by Touchstone on this appeal is that the evidence was insufficient to justify, or permit, a finding of the jury that any false material representations were made by Touchstone inducing this sale. Touchstone says that, although the jury had the right to accept the testimony of Bond and his witnesses, yet that testimony is not of such clear and convincing nature as to support the verdict of the jury. He made a motion to strike the counterclaim of Bond and for a peremptory for himself based upon the stated contention, which the trial court overruled. This calls for a brief summary of the testimony bearing upon false representations.

On October 24, 1953, Touchstone sold Bond the 1948 Mercury automobile. Bond delivered his Ford car as the down payment, valued at $270. That left Bond owing Touchstone $879.66. This was to be paid in monthly installments of $48.47 each, the first being due November 24, 1953. Bond signed the notes and the conditional sales contract, which retained in the seller title to the car until the purchase price should be fully paid.

The testimony on behalf of Bond as to misrepresentations by Touchstone was in substance this:

Touchstone was in the business of buying and selling automobiles at Hattiesburg, Mississippi. On October 24, 1953, Bond went to that place of business. Dean McLendon was an agent of Touchstone in selling and trading automobiles. He and Bond were friends of long standing. Bond dealt with him. Bond testified that McLendon showed him the Mercury car and told him '* * * the motor was in good shape and that he would take care of anything that happened to it.' Again, Bond said '* * * the engine was in good shape. Said there wasn't anything wrong with it.' Again 'he said the motor was in good condition. Good shape'; that it had been reconditioned; 'He said the motor was in first class condition'. Witness and Miss Lott (who later married Bond) and McLendon rode a short distance in the car, McLendon driving. Bond said he noticed the 'engine chattered', and called McLendon's attention to that. McLendon said, 'Well that little chattering in there wasn't going to hurt anything.'

Mrs. Bond testified that he (McLendon) said the car was in good condition. 'He told us that it was in A-1 condition and the motor had been overhauled.'

Bond and Miss Lott drove the car to Bond's home at Beaumont, a distance of 30 miles, that Saturday afternoon. They said they noticed the engine was 'chattering' and was getting hot. They found the water pump leaking. Mrs. Bond said the engine was knocking. Bond drained out the oil and replenished it with a standard brand of oil, but that the knock in the motor got worse. That night the two went for a ride in the car. Mrs. Bond said 'The knocking was pretty bad in it then--just a hard beating like something fixing to come out.'

On Tuesday, after the purchase on Saturday, Bond and Mrs. Bond (then Miss Lott) went back to Touchstone and complained about the car. Bond told them there was something seriously wrong with the car; that the motor was knocking and the water leaking. Touchstone installed a new water pump and said he would fix the other trouble later; that he was too busy to do the work that day. The following Saturday Bond brought the car to Touchstone a second time. He again explained that something was seriously wrong. He complained of the 'inserts.' He said the rods were 'knocking'. The radio did not work. He was told to take the radio to a named concern engaged in radio repairing and bring the car back later for the other repairs. He did deliver the radio as instructed. The next Saturday he came to Touchstone again. This time, in addition to other defects, it appears the car needed a 'head indicator.' Touchstone then proposed to later remedy the defects if Bond would pay half the expense. Touchstone said the conditional sales contract obligated Bond to do that. Bond refused. He told them he would not accept the car and requested them to retain the Mercury automobile and drive him home. They refused both requests. Upon making another trip to the radio repairman, and finding nothing had been done to put it in working order, and being told the repairs would be made when Bond paid for them, he, Bond, retook possession of the radio.

Now, McLendon, with whom practically all of the dealings were had, denied, in substance, that he made the representations as to the condition of the car, as testified to by Mr. and Mrs. Bond. However, he did admit that when they took the short ride in the car it was 'chattering', and that Bond complained of some other defects, and that he told Bond these would be remedied later. He denied that he told Bond the motor had been reconditioned, but, instead, said that he told Bond that a Mrs. Stennett, from whom Touchstone bought the Mercury, had told him that shortly prior to the purchase of the car by Touchstone she had had the motor reconditioned. He admitted Bond came back a number of...