Hackett v. Lewis

KERRIGAN, J.

The plaintiffs brought suit to foreclose a chattel mortgage given by the defendants to the plaintiffs to secure the payment of thirteen promissory notes of one hundred dollars each, the purchase price of a motor truck sold by the plaintiffs to the defendants. The defendants, in their answer, set up a breach of a warranty of the truck made by the plaintiffs, and in a cross-complaint demanded cancellation of the notes and mortgage, and damages alleged to have been sustained by them by reason of the breach.

[688]

The decision of the case in the trial court turned on the point as to whether or not the plaintiffs had expressly warranted the carrying capacity of the motor truck, and that court found in favor of the defendants upon this question. While there is much force in the argument made by the plaintiffs, still as there is substantial evidence in the record supporting the findings attacked, it follows, under the familiar rule in the decision of appeals, that the judgment will not be disturbed because a contrary conclusion could have been drawn from the evidence.

It appears by the testimony introduced by the defendants that defendant R. E'. Lewis, in the month of August, 1915, desiring to engage in the motor truck business, called at , the salesroom of the plaintiffs in San Francisco, and informed their representative that he was in the market for a three-ton truck; that the plaintiffs represented to him expressly and repeatedly that the truck for which the notes in suit were given in payment would carry that weight, and that a trailer might be attached thereto upon which another load of a couple of tons could be carried; that the truck was or would be put in good condition before delivery; that upon these assurances, and these assurances alone, the defendant, R. E. Lewis, on September 2, 1915, purchased the truck, giving in payment therefor his notes secured by chattel mortgage, the notes and the mortgage being executed by him and his co-defendant, M. E. Lewis. There is an abundance of evidence in the record that the truck would not cany three tons; that it was almost continuously out of repair, and was practically useless to the purchaser. On October 19, 1915, Lewis, after many complaints to the plaintiffs, and after giving them many opportunities to effectually repair the truck, and being finally satisfied that the truck could not carry three tons, offered to return it, and demanded the surrender of the notes and the cancellation of the mortgage. This was refused, whereupon the present action followed.