Williams v. McClain

• Decision Date: 08 November 1937
• Docket Number: 32879
• Citation: 180 Miss. 6,176 So. 717
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. MCCLAIN

176 So. 717

180 Miss. 6

WILLIAMS v. MCCLAIN

No. 32879

Supreme Court of Mississippi

November 8, 1937

Division A

1 SALES.

There is no implied warranty of a used motor vehicle, but, where the contract as an entirety shows that the vehicle is sold as a 1933 model, there is an express warranty that it is of that model.

2 SALES.

Where a contract of sale of a motor vehicle described it as a "used Ford hearse, as is," but a contemporaneous retention of title contract described it by its serial and engine numbers and as a 1933 model, the phrase "as is" meant that the seller sold and the buyer purchased a Ford hearse of the particular number as a 1933 model as is or in other words that the buyer accepted a 1933 model in its then physical and mechanical condition.

3. SALES.

It is a material representation in the sale of a motor vehicle that it is of a certain year of manufacture.

4. SALES.

An examination by a prospective buyer of a motor vehicle to ascertain its condition does not exclude his right to rely upon the seller's false representation as to the year of its manufacture, nor is he, as a matter of law, held to know that the vehicle is not as represented because the model plate shows otherwise.

5. SALES.

The measure of damages for breach of warranty of a motor vehicle as to the year of manufacture is the difference in value of the automobile as it was when received and as it would have been if up to warranty.

6. APPEAL AND ERROR.

Appellant cannot complain of the instructions when appellee was entitled to a peremptory instruction.

HON. JOHN F. ALLEN, Judge.

APPEAL from the circuit court of Montgomery county HON. JOHN F. ALLEN, Judge.

Action by Anderson Williams against J. K. McClain. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Loving & Loving, of Columbus, for appellant.

Under the evidence in this case the appellant sees very little use of the citation of any authorities. This is a statutory proceedings, and the statute has been strictly followed, and the deal in reference to the hearse is admitted fully by the appellee, his only contention being that he thought he was getting a 1933 model, and that he instead did get a 1932 model, but if this is a fact, it is immaterial for there was an inspection of this car and an acceptance. He bought it as a used car, there was no warranty in any sense whatever as to the model. He received exactly the car he bought. There is no denial of that. It was serial No. 4105 and engine No. 18-204682, Model No. 1933. The evidence shows this car was purchased in March, 1933, by the original, purchaser, but having inspected this car, having driven it around before buying it and found it in a satisfactory condition, and considering the value to be what he paid for it, or was to pay for it, and retained it months, without further inspection and without complaint, and paying the monthly payments, he is now estopped from any complaint. There was no warranty as to the model.

Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Durbin v. Denham, 106 Ore. 34, 210 P. 165, 29 A. L. R. 1227.

There being no material relevant evidence in defense of this action, we must submit the court erred and made reversible error in not granting a motion for a directed verdict, and also thereafter in granting each instruction for the appellee, and that the verdict is clearly contrary to the law and the evidence and this being the case, and the plaintiff in the court below having made a motion for a new trial, that the court made reversible error in not setting aside the verdict of the jury and not granting a new trial in this cause.

Cowles Horton, of Grenada, for appellee.

The hearse which appellee purchased and promised to pay for and which the appellant obligated himself to deliver was a 1933 model. It was bought upon that representation and warranty and, on that basis alone, was based appellee's obligation. The hearse delivered was a 1932 model of less value than it would have been had it been the model called for and the jury found that appellee had already paid more than the hearse was worth. Appellant, therefore, could not recover for appellee owes him nothing.

McKean v. Apparatus Co., 74 Miss. 119; Hardware Co. v. Ellis, 149 Miss. 257.

Appellee proved that the hearse delivered was a 1932 model for which he had already paid full value. That such a model differs from a 1933 model is a matter of common and judicial knowledge.

Williams v. Lumpkin, 169 Miss. 146.

Appellee demanded, and had the right to demand, the model for which he promised to pay. Appellant's representations with regard to that model were material ones which were binding on both parties. They may not be dismissed on the ground that they were not. As stated by the text, "other representations which have been held to be material, and not mere matters of opinion, are the following: That the vehicle is of a certain year of manufacture."

42 C. J. 777.

Having represented and sold this hearse as such model, appellant became bound thereby either on the idea of his stated representations or a warranty under the law, and it makes no difference, we believe, which view is accepted. Nevertheless, under the contract, we have no doubt that appellant's contract bound him by way of warranty.

42 C. J., 781.

An examination by a prospective buyer of a motor vehicle to ascertain its condition does not exclude his right to rely upon the seller's false representation as to the year of its manufacture.

42 C. J. 778; Motor Co. v. Childress, 156 Miss. 157; Fay & Egan v. Cohn, 158 Miss. 733.

Appellant offered no proof whatever as to the value of the hearse delivered. When he closed his case it was pure conjecture whether the hearse was worth more or less than the agreed purchase price of the vehicle covered by the contract. Appellant rests his whole case on his contract and his notes, and demands payment accordingly, without regard to the real value of the hearse whatever model it may have been. Appellee proved, without contradiction, that he had already paid appellant more than the value of the hearse and, on this proof, no jury could have found that he owed the appellant anything, for the thing delivered. It certainly could not have found that a balance was due on the purchase price of the 1933 model called for by the contract, because the hearse embraced therein has never yet been delivered.

OPINION

McGowen, J.

Anderson Williams, doing business as Williams Carriage Hearse & Auto Company, of St. Louis, Mo., brought an action of replevin against J. K. McClain, appellee, to enforce a limited interest by virtue of a lien or mortgage contract against him. Issue being joined and the evidence being heard, the jury returned a verdict for the appellee and judgment accordingly, and the appellant, Anderson Williams, appeals here.

The appellant assigns as error the refusal of a peremptory instruction by the court requested by him. The material facts are as follows: On the 7th day of May, 1935, the appellee, in the office of the appellant in the city of Saint Louis, Mo., purchased one Ford limousine hearse, after having inspected the hearse and having driven it around for a time, in company with one of the appellant's employees. The deal was consummated by a contract of sale, a mortgage or retention of title contract, and twelve notes for $ 50 each, payable monthly thereafter. McClain, the appellee, paid $ 300 cash, and executed the twelve notes aforesaid as a consideration for the hearse, making a total purchase of $ 900. In connection with this evidence as to the sales contract and the retention of title or mortgage contract, the unpaid notes were offered in evidence, showing that there was a balance due on them, including attorney's fees and interest, of $ 252.05.

Williams testified that the appellee made an inspection of the car and, after the appellee had driven it around for a while, it was delivered to him and ...