Mulder v. Casho

GIBSON, C. J. Defendant, a used car dealer, appeals from an adverse judgment in an action to recover damages for personal injuries received by plaintiff while driving a 1948 automobile she had purchased from defendant.

Plaintiff and defendant executed an instrument prepared by him on a printed form entitled “Auto Sales Order.” The instrument, which stated that the purchase price of the ear was $125, contained a provision, commonly called a “merger” clause, reading, “Entire agreement is expressed herein in writing. No other terms or conditions, oral or written, will be recognized.” The instrument also stated, “All used cars . . . sold ‘As Is’ and without guarantee as to condition, mileage, year or model, unless otherwise specified in writing. ’ ’

Several days later, as plaintiff was driving down a steep hill, the ear lost all braking power, gained momentum, and attained a rapid rate of speed. Plaintiff was injured when her ear collided with two other vehicles several blocks away.

Plaintiff’s testimony may be summarized as follows: When defendant showed her the car prior to the execution of the sales order, he said that the car would be put into “good shape” and that he would put better tires on it. At plaintiff’s request defendant went with her to a gas station to have the car checked by a mechanic, who, after driving it, said that it was “pretty loose” and that the brakes needed adjusting. Defendant said he would make the necessary adjustments, and, after he and plaintiff returned to the used ear lot and executed the instrument, he said the car would be ready in two days. When plaintiff went back for the car, she asked if it was necessary to take the car to a garage for a “checkup,” and defendant replied that she did not “have to worry about the ear for the next two months.” She noticed the tires had not been changed, and he told her he would change them if she would bring the ear back in a few days. She did so, and he replaced the tires.

An expert called by plaintiff testified as follows: The foot brakes were defective and failed to work. The defects included an internal leak of brake fluid in the master cylinder, and where such leaks are present the brake pedal will go down to the floor board if pressure is kept on the pedal. There were also leaks in both of the front wheel cylinders, the front brake linings were “badly worn,” and the brake drums were scored. When the foot brakes failed, plaintiff applied the hand brakes, and this generated torque pressure causing two [636]