Bahry v. Murphy ( 1928 )

WALSH, J.

Plaintiff claimed that defendant sold him a new automobile which was defective and sought in this action to recover damages for the sale price of car plus cost of repairs entailed in attempts to put the car in running condition. The evidence shows that at the time of delivery of the new car to plaintiff the motor was “tight,” due to a sprung camshaft; that the sprung camshaft was caused by making the camshaft bearing too tight by reason of which the shaft stuck in the bearing and, upon application of power to it, it sprung. This is established by abundant evidence.

The only question involved is the amount of damages awarded. The jury awarded $318.6-7. The plaintiff is entitled to what it would cost him to replace this shaft and the repairs made prior to the time he found out the difficulty with the car. He cannot recover for any damage sustained by him while he was operating the car with knowledge that it was not in good running order. According to his own witness, the repair man, he knew about two months after he bought the car that the motor needed attention but failed to have it repaired at that time and operated the car for about five or six months longer before having it repaired.

The witness, Richmond, who repaired the car, testified from his bill that the total cost entailed by the sprung camshaft was $56.83.

If plaintiff shall remit all of his verdict in excess of $56.83 within ten days from date of this rescript, defendant’s motion for a new trial is denied, otherwise, it is granted.