Wyatt v. Cadillac Motor Car Division

FOX, J.

The demurrer of defendant General Motors Corporation to plaintiffs’ fourth amended complaint was sustained without leave to amend. Plaintiffs appeal from the judgment of dismissal.

Plaintiffs purchased a Cadillac from defendant on December 7, 1951, for $4,850.52. This action grows out of its unsatisfactory performance, which developed immediately following delivery.

Plaintiffs’ first cause of action is on the theory of negligence. They allege that in the manufacture and assembly of the automobile defendant’s employees, through mistake and negligence, caused a piece of brown industrial wrapping paper

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to be sealed in what is known as the breather pipe, thereby internally sealing this pipe and preventing adequate motor ventilation; that as a result thereof the ear did not operate “up to the standard of performance of a Cadillac” but “operated in an unsatisfactory, substandard and mechanically inefficient manner at all times since the date of sale”; that commencing with the day following the delivery of the automobile, plaintiffs began a series of returns to the service department in an effort to get it put into proper operating condition; that they thus expended $735.12 for parts and mechanical repairs; that defendant’s efforts were unfruitful until April 5, 1954, when a service mechanic discovered and removed the paper from the breather pipe; that as a result of defendant’s negligence and mistake in assembling the car and its failure to promptly discover the trouble, the car was completely ruined. They further allege demand that defendant put the automobile in condition to operate in accordance with established standards for Cadillac cars and that defendant refused to so repair and condition the vehicle.

For their second cause of action plaintiffs allege defendant warranted that the automobile was manufactured and assembled to perform according to established standards of Cadillac performance. This asserted warranty is not alleged to have been in writing. Plaintiffs also allege they relied upon the implied warranty of quality. They then allege the unfitness of the car by reason of the breather pipe being plugged by wrapping paper, and thus charge a breach of warranty.

For their third cause of action plaintiffs allege that after the refusal to repair and recondition the car they served a written notice of rescission of the contract of purchase and sale on defendant; offered to return the automobile, and demanded the return of the purchase price but that defendant rejected their notice of rescission. Attached to the complaint is a purported copy of this notice. It is dated in August, 1954.