Bertram v. Reed Automobile Co.

SMITH, J.

Appellant purchased a “used” automobile from appellee, who is a dealer in new and used automobiles. The car “proved wholly unsatisfactory and would not do the work required of it, nor would the same function and give plaintiff any service, and he returned same to the defendant’s business place in Corpus Christi.” Appellee then proposed to exchange another used car for the one rejected, appellant accepted the proposition, and the trade was made. Appellee’s agent represented the second car taken by appellant as “a good little car,” a “dandy,” a “bear-cat,” which had been “well taken care of”; that it “had good rubber on it,” had “not been driven but 19,000 miles,” had “not been mistreated,” was “a sure enough automobile,” a “good automobile”; that mechanics Rad. gone over the car and found it in perfect working condition. The car was a 1926 model, was about two years old at the time. Appellant examined the car, was satisfied with it, executed written contracts for its purchase, agreeing to pay a money difference between it and the car he turned in for it. He took the car home with him, used it for about two years, during which time appellee sued' him and recovered judgment against him for the amount he had agreed to pay. After more than two years he brought this suit against appellee to recover damages alleged to have been sustained by him by reason of the fraud appellee practiced upon him in palming off said car on him.

We have concluded that the trial court properly directed a verdict against appellant, upon several grounds. First, the representations made by appellee’s agent in making the sale to appellant, as set out above, are not such as will support a charge of fraud in a transaction of this sort. Common experience and observation cause one to marvel at the moderation of the selling agent in making his trade talk to appellant. For an automobile selling agent to describe his offering merely as a “dandy,” a “bear-cat,” a “good little car,” a “good automobile,” or even a “sweet job,” is nothing. Those are relative terms, they may mean anything the orator or the listener wants, and neither may be penalized if the one exaggerates or the other is disappointed. There may be something more definite in the representations that the ear had been well taken care of, had good rubber on it, had been driven but 19,000 miles, had not been mistreated, that mechanics had found it in perfect condition. But even if in any given case such statements would support a charge of fraud, this is not such case, for none of the statements were proven to have been false, or fraudulently made. Appellant has pointed out no evidence upon which a fraud case could possibly be predicated.

The charge of fraud is further defeated by the fact that appellant purchased the car upon his voluntary written contracts by which the responsibility of appellee was repeatedly and expressly restricted to the warranties and guaranties embraced in those contracts, none of which are claimed to have been breached.

There are other questions in the appeal, but as appellee was entitled to the directed verdict upon the bald facts of the case, there is no occasion to expressly pass upon other questions.

The judgment is affirmed.