Mattocks v. Class a Motor Co.

WOOD (W. J.), J.,

pro

tem.

Plaintiff purchased a Buiek automobile from the defendants on May 11, 1925, for which he paid them in cash the total sum of $925 and “turned in” another automobile for the agreed price of $500. He commenced this action for damages, alleging in his complaint that defendants had made false representations to him at the time of the purchase of the car. He set forth that defendants represented to him that the car was new and unused and in the condition that it was in when shipped by the manufacturer; that these representations were untrue, that the car had been repainted, a bow of the top broken, the upholstery torn, old tubes inserted in the casings and a radiator installed which was not designed for the car in question. Defendants filed an answer in which they denied that false representations were made. They alleged that the car had been “used as a demonstration car for the said defendants herein” and that plaintiff was informed of the true condition of the car at the time of the purchase. The ease was tried with a jury and a verdict rendered in plaintiff’s favor fixing the damages at $925. Upon motion for a new trial plaintiff consented to a reduction of the judgment to the sum of $725.

Defendants contend that “in a reading of all the transcript and all the testimony there cannot be found any

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evidence, that plaintiff introduced, to show ‘that said car was not a new ear but that in truth and fact it was a used car. ’ ” A careful reading of their answer discloses that defendants did not deny the allegation that the car was not a new car. We find, however, that the answer contains this admission: “That said automobile has (had) been used as a demonstration car for the said defendants herein.” Sufficient evidence was introduced by plaintiff to establish all of his allegations on the subject of the defective condition of the car. It cannot be said that a car which has been used in making demonstrations to such an extent as to call for repainting is a new car.

The trial court gave the following instruction: “You are instructed, therefore, that the following issues must be determined by you, to-wit: (1) Whether or not the said defendants represented and warranted to plaintiff, prior to or at the time of the purchase, that the car was a new or unused car. (2) Whether or not the plaintiff relied upon such representations and by reason of his reliance upon such representations purchased said car as a new one.” It is now contended that some of the issues were not covered in this instruction, resulting in a violation of the rule that if an instruction purports to state the conditions necessary to a verdict, it must state all of those conditions. The instruction under discussion does not purport to cover all the issues; nor does it tell the jury to find in favor of either party in the event they should find any certain facts to be true. The rule mentioned is not violated.