Lindberg v. Coutches

167 Cal.App.2d Supp. 828 (1959) CARL D. LINDBERG, Respondent,

v.

MICHAEL COUTCHES, Appellant.

California Court of Appeals.

Feb. 2, 1959. Purchio & Fairwell and J. W. Morony for Appellant.

Paul N. McCloskey, Jr., for Respondent.

QUAYLE, J. pro tem. [fn. *]

This appeal comes before the court on an agreed statement of facts after judgment in favor of plaintiff in an action for breach of warranty arising out of the sale of a used "Cessna 195" aircraft in which damages in the sum of $1,200.73 were awarded against defendant. The amount of damages is not an issue here. The defendant appeals, contending that the sale was made without warranty, express or implied.

On April 20, 1957, while engaged in the business of selling aircraft, appellant agreed in writing to sell to respondent a certain "Cessna 195" aircraft for $7,150. A printed clause in the contract provided--

"It is agreed that the aircraft herein sold is sold as is, where is, unless otherwise specified."

A handwritten insertion in the contract, under the term "Remarks" provided: "Deposit subject to financial approval and mechanical approval."

Prior to the execution of the contract, respondent made known to appellant that he proposed to use the aircraft immediately in the aerial photography business. Respondent and appellant made a short test flight in the aircraft before respondent took delivery. Appellant made no statement of any kind to indicate that the aircraft was in any way unfit for respondent's proposed use.

Respondent did not accept delivery of the aircraft until he had employed Mr. Skid Meissner, a duly licensed CAA mechanic and inspector to give the aircraft a 100-hour check and complete mechanical examination. After correcting several minor defects he certified the aircraft to be merchantable and airworthy under CAA regulations. Mr. Meissner, stipulated to be an expert on aircraft mechanics, testified that prior to the time of sale and his examination, a piece of shim stock had been inserted between the crankshaft and oil-retaining enclosing sleeve; that such piece of shim stock concealed a worn area in the crankshaft and further kept a serious oil leakage problem from becoming apparent upon any reasonable investigation; that such shim stock could only be discovered upon a major overhaul of the aircraft; that this condition [167 Cal.App.2d Supp. 831] made the aircraft both unmerchantable and non-airworthy under existing CAA rules.