Morris v. Fiat Motor Sales Co.

KERRIGAN, J.

From the evidence in this case it appears that in the month of March, 1913, the plaintiff purchased from the defendants a second-hand automobile styled Pope-Hartford through the efforts of one Shaw, who was employed by the defendants as a mechanic and demonstrator, but who, under the evidence in this case, must be regarded as the agent of the defendants in the sale of the car in question. During the negotiations for the same Shaw represented to the plaintiff, among other things, that the car was a ‘ ‘ 1912 model. ’ ’ Within a month after the purchase the plaintiff discovered that the car was not of the manufacturer’s model of 1912, but of 1911, and was consequently of less value, whereupon he immediately offered to redeliver the car to the defendants, and demanded the return of the purchase price. This offer and demand being refused, he commenced this action for rescission of the contract. Judgment went for the plaintiff, and this appeal is by the defendants from that judgment and from an order denying their motion for a new trial.

It is true, as claimed by defendants, that an express warranty to be available must be alleged in the complaint; but this does not mean that in order to create an express warranty of an article of personal property the word “warranty” should be employed, or any form of affirmative words of warranty. Any affirmation made at the time of the sale or exchange, as to the character or condition of the thing sold, will be treated as a warranty if it is so intended, and if the other party acquired the property on the faith of such affirmation.

(Coats

v.

Hord,

29 Cal. App. 115, [154 Pac. 491] ;

Luitweiler etc. Engine Co.

v.

Ukiah, Water etc. Co.,

16 Cal. App. 198, 207, [116 Pac. 707, 712] ;

Pepper

v.

Vedova,

26 Cal. App. 406, [147 Pac. 105]; 35 Cyc. 381.)

In the present ease the complaint alleges that the defendants falsely represented to the plaintiff as a fact that the automobile was then and there a 1912 model Pope-Hartford 50 horse-power car, whereas in truth and in fact it was a 1911 model of that make; that plaintiff wholly relied upon said representation in making the purchase. This, we think, constituted an allegation of an express warranty as to the quality