Worden v. Peck

• Court: Michigan Supreme Court
• Writing for the Court: WIEST
• Citation: Worden v. Peck, 245 Mich. 237, 222 N.W. 101 (Mich. 1928)
• Decision Date: 04 December 1928
• Docket Number: No. 59.,59.
• Parties: WORDEN v. PECK.

245 Mich. 237

222 N.W. 101

WORDEN

v.PECK.

No. 59.

Supreme Court of Michigan.

Dec. 4, 1928.

Appeal from Circuit Court, Kent County, in Chancery; Willis B. Perkins, Judge.

Suit by Louis Worden against Fred H. Peck. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before the Entire Bench.

J. Claude Youdan, of Grand Rapids, for appellant.

Homer H. Freeland, of Grand Rapids, for appellee.

WIEST, J.

Plaintiff purchased from defendant a secondhand automobile, turned in a used automobile in part payment, paid some cash, and gave his notes, secured by chattel mortgage on the car, for the balance. After using the car some weeks, during which time defendant attempted repair, plaintiff returned it to defendant and filed the bill herein to obtain rescission for breach of alleged warranty and to restrain defendant from disposing of the notes. Defendant denied the alleged warranty, asserted repairs and adjustments made without charge, and set up sale of the automobile under the chattel mortgage, credit given for the avails, and asked decree for the balance due. The circuit judge found the warranty, reliance thereon, and breach thereof, and granted plaintiff a money decree for $275. Defendant appealed.

In making the sale, defendant's sales agent stated that the car was in A-1 condition, had had a complete overhauling, the block had been rebored, new pistons placed, and it was the same as a new car, and everything was in good running order. The car had not been properly put in repair, and had many defects which we need not detail, beyond stating that, when plaintiff finally returned the car, defendant put in a new crank shaft, new valves in the motor, wrist pins, rollers, six pistons, fly wheel, four cork inserts, pressure plate, front bearing cap, cylinder head gasket and a differential carrier assembly, at an expense of $200. Plaintiff purchased the car July 9th. He teturned it twice for adjustments and repair of defects, and returned it finally the last of August, after driving it in all about 800 miles.

Counsel for defendant contends that the statements made about the condition of the car were but an expression of opinion and not a warranty. If plaintiff was led to make the purchase by statements of the condition of the car, the representations constituted a warranty affording him right of rescission for breach thereof. The representations went beyond mere sales puffing.

There was an express affirmation of a particular condition of...