Lacy v. Greer-Robbins Co.

THE COURT. This case was transferred to this court from the District Court of Appeal of the Fourth Appellate District, after decision by that court, for the purpose of giving further consideration to the question of an implied warranty in the sale by a dealer of an automobile which, after such sale, proved to be defective and unfit for use. We have devoted some time to the study of the sections of the [771]Civil Code relating to the subject of warranties in the sale of personal property in effect at the date of said sale and of the decisions of this state construing these sections of the code, and are constrained to agree with the decision of the District Court of Appeal in holding that in the sale of said automobile there was no implied warranty as to its fitness to perform either the special purpose for which it was purchased or the general purposes for which machines of that character are used. We therefore adopt the opinion of that court, written by Mr. Presiding Justice Barnard, and make it the opinion of this court. It is as follows:

“On February 9, 1931, the plaintiff agreed to purchase from the defendant under a conditional sales contract a new Chrysler automobile for $2,282.67, payable in instalments. Within a day or two he discovered that the machine did not operate properly and took the same to the defendant’s place of business to have the defects corrected. The defendant’s employees were unable to discover what caused the trouble and told him to drive the car ‘another thousand miles’, and that the defects might disappear when the car was broken in. The defective condition of the car continued and the plaintiff had it in the defendant’s garage some twenty times, sometimes leaving it there several days at a time. The defendant’s employees were never able to locate the cause of the trouble, and finally, in August, 1931, the plaintiff was told that nothing more would be done for him. Having by that time paid $890 on account of the purchase price, he gave notice of rescission, tendered back the ear and demanded the return of the amount paid. The defendant refused to comply with the demand for rescission but took possession of the car when the plaintiff refused to make the next payment. The plaintiff brought this action to recover the amount paid and recovered judgment for $380, the court finding that the value of the use of the car in the meantime was $510. From the judgment entered the defendant has taken this appeal.

“ The court found that this automobile was defective and not suitable for the purpose for which it was intended. Although not without conflict, the evidence supports these findings. The main question here presented is whether the evidence supports certain other findings to the effect that the appellant had warranted to the respondent that the auto