West v. Carter
| Decision Date | 07 January 1963 |
| Docket Number | No. 5-2875,5-2875 |
| Citation | 363 S.W.2d 415,235 Ark. 970 |
| Parties | J. A. WEST, Sr., et al., Appellants, v. Harry CARTER, Appellee. |
| Court | Arkansas Supreme Court |
Shackleford & Shackleford, El Dorado, for appellants.
A. A. Thomason, Magnolia, for appellee.
The appellants insist that they were entitled to an instructed verdict in their favor. That is the only issue presented.
The appellants are J. A. West et al., doing business as West Lincoln-Mercury Company, and the appellee is Harry Carter, an individual. Carter contracted to purchase from appellants a used 1958 Pontiac automobile. To complete the transaction, Carter delivered to appellants a 1955 Chevrolet automobile and signed a conditional sales contract which, with insurance and carrying charges, was for a total amount of $1332.96, and which was payable in monthly installments of $55.54. Within a few days after the transaction, Carter reported to appellants that the Pontiac car was not in good 'A-1 condition,' as it had been represented to him: something was wrong with the A-frame; one door would not stay closed; the car had a tendency to 'dart' in the steering. Appellants assured Carter that the Pontiac would be put in good condition, and did undertake repair work on the car on three different occasions over a period of as many months; and the repair bill amounted to an excess of $100.00.
Appellants had transferred the conditional sales contract to the Universal C.I.T. with recourse. When the first monthly payment became due, Carter told appellants he would not make the payment because the car was defective; but appellants assured Carter that if he would make the payment, appellants would repair the car to Carter's satisfaction. On such repeated promises and representations Carter made three monthly payments; but then refused to make any more, since the Pontiac remained unsatisfactory. Thereupon, appellants reacquired the conditional sales contract from Universal C.I.T. and filed action against Carter for the balance on the contract, plus $60.51 balance on open account for repairs. Carter's defense was that appellants had been guilty of false representations as regards the condition of the Pontiac, in that it had been wrecked and was never put in good condition, as represented. Trial to a jury resulted in a verdict and judgment thereon: that appellants should return to Carter the 1955 Chevrolet, or its value of $400.00; and that Carter should return to appellants the 1958 Pontiac, or its value of $1012.62; and that Carter recover his costs. To reverse that judgment, appellants bring this appeal, urging only one point: 'The Court erred as a matter of law in failing to direct a verdict in favor of appellants for the relief sought.'
The appellants urge (a) that Carter admitted executing the conditional sales contract; and (b) that Carter admitted making three payments on the contract after learning that the Pontiac was defective. Because of these matters, appellants claim that Carter waived any and all defects in the Pontiac car; and appellants cite and rely on three cases, to-wit: Hignight v. Blevins, 220 Ark. 399, 247 S.W.2d 996; Teare v. Dennis, 222 Ark. 622, 262 S.W.2d 134; and Advance Aluminum Casting Co. v. Davenport, 224 Ark. 440, 274 S.W.2d 649. To these cases, others might be added, one of which is Kern-Limerick v. Mikles, 217 Ark. 492, 230 S.W.2d 939, wherein we cited Pate v. J. S. McWilliams, 193 Ark. 620, 101 S.W.2d 794:
'In Pate v. J. S. McWilliams Auto Co., supra, the seller brought suit on a title retaining contract involving automobiles; and the buyers cross-complained for damages, because of alleged fraudulent misrepresentations inducing the sale. The evidence showed that the buyers used the cars from May until December; and after having received full knowledge that the alleged representations were not true, the buyers continued to make payments on the automobiles. On such evidence the trial court instructed a verdict for the seller in his action for the balance of the contract price; and this Court affirmed, saying:
"* * * appellants waived the right to defend on the ground of a fraudulent procurement of the contract by making no complaint and by using the trucks and making monthly payments thereon long after they claimed to have discovered that the Dodge truck consumed more gas and oil than the Chevrolet trucks had consumed.' [193 Ark. 620, 101 S.W.2d 795.]
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Ray Dodge, Inc. v. Moore
...Corp. v. Davenport, 224 Ark. 440, 274 S.W.2d 649; Pate v. J. S. McWilliams Auto Company, 193 Ark. 620, 101 S.W.2d 794; West v. Carter, 235 Ark. 970, 363 S.W.2d 415. In the first case, although the purchaser made only one payment on the purchase contract, he made no complaint of any kind to ......
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