Washington v. Courtesy Motor Sales, Inc.
| Decision Date | 27 April 1964 |
| Docket Number | Gen. No. 49332 |
| Citation | 199 N.E.2d 263,48 Ill.App.2d 380 |
| Parties | Theodosia L. WASHINGTON, Plaintiff, v. COURTESY MOTOR SALES, INC., and Ford Motor Company, Defendants. Theodosia L. WASHINGTON, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Certain Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Benjamin C. Duster and Geter & Geter, Chicago; Howard D. Geter, Sr., Howard D. Geter, Jr., and Benjamin C. Duster, Chicago, of counsel, for appellant.
Dallstream, Schiff, Hardin, Waite & Dorschel, Chicago; Mitchell S. Rieger, Bernard E. Lyons, Chicago, of counsel, for appellee.
This is an action of fraud and deceit. The trial court struck the amended complaint and dismissed the action as to defendant Ford Motor Company, on the ground that the amended complaint, as to Ford, was 'substantially insufficient in law.' Plaintiff appeals.
In substance, the fraud alleged is that while plaintiff negotiated and paid for a new car, the automobile which was delivered to her had been previously used, and its speedometer had been set back. Charging fraud and deceit in the sale, plaintiff seeks damages totaling $50,018--being $1,018 compensatory and $49,000 exemplary.
The determinative question is whether the amended complaint alleges sufficient facts in law to support plaintiff's allegation that, for the purpose of selling a new Ford automobile to plaintiff, defendant Courtesy Motor Sales was an agent of the defendant Ford Motor Company.
The amended complaint alleges that defendant Courtesy is a 'duly authorized franchised dealer for selling and distributing the products of Defendant, Ford Motor Company' and 'acting as a franchised agent of the Ford Motor Company * * * executed a contract of sale and purchase with the Plaintiff on Courtesy Motor Sales New Car Division order blanks. * * * upon delivery of the automobile, Ford Motor Company, by and through its franchised agent, Courtesy Motor Sales, warranted the 1962 Ford Fairlane * * * to be new by giving Plaintiff a New Car Warranty.'
Plaintiff contends that the allegations of a principal-agent relationship between defendants, the admission of an agreement between defendants ('the terms and provisions of which agreement are unknown to the Plaintiff'), and 'the delivery to the Plaintiff of new car warranties of the Ford Motor Company by Courtesy Motor Sales, its franchised dealer,' meet the test for a complaint against defendant Ford sufficient in law within the limits outlined in City of Evanston v. Piotrowicz, 20 Ill.2d 512, at p. 518, 170 N.E.2d 569, at p. 573 (1960):
'Agency may be established and its nature and extent shown by parol evidence, whether direct or circumstantial, and reference may be had to the situations of parties and property, acts of parties, and other circumstances germane to the question, and if the evidence shows one acting for another under circumstances implying knowledge on the part of the supposed principal of such acts, a prima facie case of agency is established.'
Of the exhibits attached to the amended complaint, plaintiff contends that Exhibits 'D' and 'E' meet the foregoing agency test as to defendant Ford. Exhibit 'D' is a printed form, headed in bold type with: 'This is your Ford Dealer's NEW CAR WARRANTY,' and opens with the statement: 'Ford Motor Company has warranted to the Dealer who, pursuant to his sales agreement with the Company, hereby, on his own behalf, warrants to the Purchaser each part of this 1962 Ford Fairlane to be free under normal use and service from defects in material and workmanship * * *.' All other references are to 'the Dealer' or 'any Authorized Ford Dealer.' Exhibit 'E' is a series of blank service coupons, each of which is headed in bold type: 'NEW CAR WARRANTY SERVICE ACKNOWLEDGMENT COUPON.' The terms refer to 'your Ford Dealer's New Car Warranty * * * the selling dealer * * * any Authorized Ford Dealer * * *.'
Although Ford's motion to strike was filed pursuant to sections 45 and 48(1)(i) of the Civil Practice Act, Ill.Rev.Stat.1963, c. 110, §§ 45, 48(1)(i), we are concerned only with section 45, which provides that a pleading may be attacked for deficiencies which appear on its face. Motions to dismiss admit facts well pleaded, but not conclusions of law or...
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