Zimmern v. Standard Motor Car Co.

• Citation: 205 Ala. 580,88 So. 743
• Decision Date: 21 April 1921
• Docket Number: 1 Div. 184
• Parties: ZIMMERN v. STANDARD MOTOR CAR CO.
• Court: Supreme Court of Alabama

88 So. 743

205 Ala. 580

ZIMMERN v. STANDARD MOTOR CAR CO.

1 Div. 184

Supreme Court of Alabama

April 21, 1921

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action in assumpsit by the Standard Motor Car Company against Samuel Zimmern. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals, under section 6 Acts 1911, p. 449. Affirmed.

Harry T. Smith & Caffey, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

THOMAS J.

The plaintiff brought suit to recover payment for a Winther gasoline truck. Defendant replied with the general issue and special pleas alleging that the note made the foundation of the suit was in payment for the truck indicated, and alleging and reciting the misrepresentations on the part of the vendor's agent that induced its purchase.

After introduction of the evidence, plaintiff requested in writing charge No. 3, the giving of which is made the basis of assignment of error. Supporting the charge was testimony tending to show that on the day the truck was ordered plaintiff's sales agent, Mr. Steele, was in Brewton and had a telephone conversation with defendant in Mobile relative to the sale, and from which conversation a sale of the truck may be inferred or was fairly disclosed. It was further testified that shipment was ordered the same day by seller's agent. Among other things, relative to the telephone conversation, Mr. Zimmern testified that he told Mr. Steele he would take a Winther truck and closed the deal and signed written order therefor some days later, that "I closed the deal over the telephone, and I would take his word for it," and "bought the truck from him on his recommendation." Of this Mr. Steele testified that the price, being stated, was agreed upon, and Mr. Zimmern "told me that he would take the truck," and on the redirect and recross examination said:

"When I had that conversation with Mr. Zimmern over the telephone at Brewton, that truck was ordered from Illinois *** from the factory before I left Brewton. Mr. Goff *** ordered that truck out by letter *** before I came from Brewton to Mobile. *** After I returned to Mobile I had another conversation with Mr. Zimmern about that matter. That was about two or three days after our first one on the telephone."

Plaintiff's testimony tended to show that the written order was signed by Mr. Zimmern the day after his agreement of purchase by telephone with Mr. Steele. Such was the testimony of Mr. Kearns, the general manager of plaintiff company.

When the buyer and seller agree upon the terms of sale, though the property may not be delivered at such time, it is not inconsistent with a sale of personal property that it be delivered at a subsequent time. Dowling-Martin Gro. Co v. Lysle Mill. Co., 203 Ala. 491, 83 So. 486; Lysle Mill. Co. v. North Ala. Groc. Co., 201 Ala. 222, 77 So. 748; Lawrenceburg Roller Mills Co. v. Jones, 85 So. 719; Brandon Printing Co. v. Bostick, 126 Ala. 247, 28 So. 705; Robinson v. Pogue, 86 Ala. 257, 5 So. 685; Pilgreen v. State, 71 Ala. 368.

The special pleas having sought to avoid payment of the note by the fact that defendant relied upon misrepresentations made at the time of the purchase of the truck and that induced defendant to the purchase (Standard Motor Car Co. v. McMahon, 203 Ala. 158, 82 So. 188; Greil Bros. Co. v. McLain, 197 Ala. 136, 72 So. 410; Prestwood v. Carlton, 162 Ala. 327, 332, 50 So. 254; Ball v. Farley, 81 Ala. 288, 292, 1 So. 253; Henry v. Allen, 93 Ala. 197, 9 So. 579; Corry v. Sylvia y Cia., 192 Ala. 550, 68 So. 891, Ann.Cas.1917E, 1052; see Code, §§ 2469, 4298, 4299), the giving of charge 3 did not take from the jury a consideration of the representations of the nature and quality of the truck being purchased, made to defendant subsequent to the telephone conversation and prior to his execution of the written order. The jury was instructed that, if the order for the truck was signed the day after the telephone conversation in question, then "no conversation on the part of Steele or representations as made by him after the signing of said order would be binding upon the plaintiff." If counsel for defendant were of opinion that the charge was misleading or likely to be misunderstood by the jury, explanatory charges should have been requested. The issue presented by the special pleas was fairly given to the jury by Mr. Steele testifying, without objection, that at all times he made the assertion that the parts of the truck being sold Mr. Zimmern were as good and as strong as the parts of any other high grade truck, etc., and by Mr. Zimmern testifying that Mr. Steele referred to any first-class truck, and mentioned the Packard and White trucks as a part of his recommendations of the superior quality of the Winther truck.

There was no reversible error in sustaining objection to witness Quigley's comparison of the truck purchased with a Packard or a White. The observation called for was not authorized by the statement of the witness who answered, in response to question by the court, "Are you familiar with the Winther truck?" "To only a certain extent." In the light of the qualification by his knowledge and experience--being familiar with the Packard and White trucks and to a certain extent with the Winther truck, made the subject of the suit--he was not in a position to make the comparison or express the opinion called for. However this may be, the witness was then permitted to answer, without objection, that parts of a two-ton Winther truck are of a different construction from the parts of a Packard and a White, the Winther being driven by an "internal gear" and the Packard by a "worm" drive, and gave his opinion that the "Packard construction is a better construction," and, "comparing the two-ton Winther truck with the two-ton Packard and White trucks, I would say that the White and Packard are better trucks," and that in his opinion the latter trucks would not be affected by a "50 per cent. overload." On cross-examination the witness further testified to the difference in said trucks.

A witness for defendant (William T. Leonard), having testified that he handled the White, Duplex, and Republic trucks and knew there was a truck called the "Winther," was asked, "Do you know how it classes with the White truck?" to which objection was sustained and exception reserved. The witness was permitted to state, without objection, that the quality of the White truck, as to strength and durability, is according to the capacity for which it is built, and stated that he was unfamiliar with Packard trucks. Whereupon witness was asked, "Are trucks classified as to their strength and durability in the automobile business?" to which objection was sustained and exception reserved. The defense presented by the special pleas was that of Mr. Steele's representation that parts of the Winther truck were made of as good material and as durable as those of any first-class truck, or of the trucks mentioned; and no issue of how the Winther truck classed generally with the White truck, or how trucks are classed generally as to their strength and durability. The sustaining of objection to the questions as to classification of trucks in the automobile business was without error.

The defendant, as a witness in his own behalf, being interrogated as to repairs made upon the truck (the basis of this suit) and set forth in the bills exhibited, was asked by defendant:

"I have in my hand a bill dated May 24, 1918 (Exhibit D 1, BAC) from the Standard Motor Car Company, mechanic time, $1.30, on Winther truck; I wish you would state what that charge was for."

To this objection was sustained and exception reserved. Thereafter the witness stated:

"The bill dated June 24, 1918, about which I have been asked, containing the item of $1.30, was gotten by me from the Standard Motor Car Company, as was also the bill of June 19, 1918. The Standard Motor Car Company furnished the axle shaft mentioned in the bill." Neither the exhibits nor the evidence show a bill of June 24, 1918. The witness was no doubt referring to the bill of May 24, 1918, about which he had been asked. That repairs to the truck in question had been made or were necessary within a short time after its purchase was competent and relevant evidence for defendant. It was not proper to ask the witness what the charge was for, without identifying it as repairs on the Winther truck in question. The bill itself was the better evidence; that is, if it be conceded that it was for repairs on the particular truck in controversy, and made necessary by reason of its defective or insufficient construction or parts. The defendant, having testified that the "rear system of this truck broke down," and that it was sent to plaintiff's place of business to have parts replaced, was asked:

"How long was it laid up then?" "Do you know what the reasonable market value of the use of that truck was at that time?" "How long was it made necessary that it should remain idle at that time by the necessity of these repairs?"

To each question objection was sustained and exception reserved. The answers sought could but tend to confuse the issue presented. However, the witness testified that after the truck was repaired and the rear system renewed, "it gave service for awhile, but it would be impossible for me to say how long; there was so much repairing; she would run a little while and break down; I do not know the details." Witness was then asked what the reasonable market value of the truck was in the condition it was delivered to the defendant and at the time he purchased it, and replied "I paid $4,100 for it," and was permitted to answer the question. "What it was worth" as, "$2,000 would be a big...