Baker & McDowell Hardware Co. v. Ellis , 149 Miss. 257 ( 1928 )

^* Corpus Juris-Cyc. References: Sales, 35Cyc, p. 369, n. 11; p. 465, n. 93; p. 468, n. 7; On the question as to whether express warranty as to quality excludes implied warranty as to quality, see annotation in 33 L.R.A. (N.S.) 501; 24 R.C.L. 158. Appellant operated a sales department as local dealer in "Star" automobiles in the city of Natchez. Appellee purchased from appellant a touring car of this make. These cars were manufactured by the Durant Motor Corporation. The sale was evidenced by a written conditional sales contract designated as "Buyer's Order." The total purchase price was six hundred fifty dollars. Appellee made an initial cash payment of sixty-eight dollars, traded in another car at four hundred thirty-five dollars, and executed seven promissory notes for twenty-one dollars each for the balance. These notes were assigned to a third party and paid by appellee at maturity. The suit was based upon an alleged breach of warranty in the sales contract, and resulted in a judgment for appellee in the sum of three hundred nine dollars. That part of the order pertaining to a warranty reads as follows:

"It is agreed that this purchase is made by me, subject to the provision of the standard warranty of the manufacturer which is printed on the back of and made a part of this order, and that it is the only warranty, either expressed or implied, made under this order, or otherwise."

We quote from the warranty referred to as follows:

"This is to certify that we, the Durant Motor Corporation, warrant each new motor car manufactured by us to be free from defects in material and workmanship under normal use and service, our obligation under this warranty being limited to making good at our factory any part or parts thereof which shall within ninety days after delivery of such vehicle to the original purchaser be returned to us with transportation charges prepaid, and which our examination shall disclose to our satisfaction to have been thus defective, this warranty being expressly in lieu of all other warranties expressed or implied, and of all other obligations or liabilities on our part, and we neither assume nor authorize any other person to assume for us any other liability in connection with the sale of our motor cars."

The appellant put on no proof. Appellee's proof was to the effect that the motor was defective. He testified that the motor burned an excessive quantity of oil; that the car was lacking in power, and soon developed a knock and rattle. This trouble developed within a few days after the purchase. Upon discovering the defect, he carried the car to appellant within some six weeks after the purchase. The appellant's mechanic examined it, and his examination disclosed that the bore and block were oversized. Appellant kept the car in the repair shop a day or two, but did not remedy the defect. The appellee further testified:

"I asked them to give me a new motor and they would not do it, and I offered to let them take it out and ship it back, but they did not do anything."

The appellant's mechanic testified that the cylinders were from twenty-one one-thousandths to twenty-five one-thousandths oversize, and that no two cylinders had the same bore in the motor, and the pistons were undersize; that this defect would cause the pistons to "slap" and cause it to pump oil, and, in the course of time, would cause loss of power. It was further shown that a difference of one one-thousandths from standard specifications is permissible.

As proof of damages, appellee undertook to show certain expenditures for repairs, one item of which had been incurred more than twelve months after the sale, and was also permitted, over appellant's objection, to show the cost price of a new motor.

The appellant presses three points as the main grounds for reversal: (1) That the warranty in the "Buyer's Order" was the warranty of the manufacturer and not that of the dealer, and, before recovery for a breach thereof, appellee was required to show compliance therewith by shipping the motor to the manufacturer, etc.; (2) that the defect complained of was a latent defect, and, in the absence of fraud on the part of the dealer, no recovery can be had; (3) that the instructions for the plaintiff announced an incorrect rule for the measure of damages.

The appellant stipulated in the contract that the sale was made subject to the provisions of the standard warranty of the manufacturer, and that said warranty was made a part of the order. In writing this into the contract, it adopted the express warranty of the manufacturer, and, having done so, became bound by its terms. 24 R.C.L. 157; Loxtercamp v. Lininger ImplementCo., 147 Iowa, 29, 125 N.W. 830, 33 L.R.A. (N.S.) 501; 2 Mechem on Sales, section 1240.

Appellant cites as authority in support of his second proposition the case of Industrial Finance Corporation v.Wheat, 142 Miss. 536, 107 So. 382. We have examined this case, and also the case of Belleville Supply Co. v. Dacey,141 Miss. 569, 106 So. 818, a parallel case. In both of these cases, this court was dealing with a contract containing no express warranty of the quality of car. The purchaser relied upon an implied warranty against a latent defect in the car sold by the dealer. In the former case, quoting from the syllabus, it was held:

"In a present executed sale of automobile by dealer, who was not the manufacturer, there is no implied warranty against defects, though latent, in absence of fraud of dealer; buyer not having, to seller's knowledge, relied on seller's, instead of his own, judgment."

Here we have a contract containing an express warranty which was adopted by the dealer as its own warranty.

The evidence as to the several items of damage was too indefinite, and the instructions for plaintiff in the court below did not follow the well-established rule which fixes the measure of damages in such cases. Appellee elected to pay for and keep the car and bring suit for breach of warranty. The measure of damages, where a breach of warranty is shown in such case, is the difference in the value of the chattel as it was when received, and as it would have been if up to warranty. Mobile Auto Co. v.Sturges Co., 107 Miss. 848, 66 So. 205; Bowers v. SouthernAutomatic Music Co., 114 Miss. 25, 74 So. 774; Stillwell etal. v. Biloxi Canning Co., 78 Miss. 779, 29 So. 513; HallCommission Co. v. Crook, 87 Miss. 445, 40 So. 20, 1006.

No instruction given to either party announced this rule for the guidance of the jury.

The judgment will therefore be reversed and remanded for new trial on the question of damages only.

Reversed and remanded.