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Appleman v. Fabert Motors

MAY 16, 1961.

JOHN ALAN APPLEMAN, PLAINTIFF-APPELLEE,

v.

FABERT MOTORS, INC., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Champaign county; the Hon. BIRCH E. MORGAN, Judge, presiding. Judgment affirmed.

REYNOLDS, J.

Rehearing denied June 12, 1961.

Plaintiff bought a Lincoln Premier Automobile from the defendant corporation on May 14, 1959, paying $6,217.77 for it. At the time of purchase, defendant furnished plaintiff with the usual 1,000 and 2,000 mile inspection coupons and the customary warranty wherein and whereby the dealer warrants the automobile and each part thereof to be free under normal use and service from defects in material and workmanship for a period of ninety (90) days from date of delivery. Within a very short time after delivery plaintiff began to have trouble with the automobile. The defendant admits in its brief to servicing the car for defects in the operation of the gas gauge, door lock, speedometer, light switches, temperature gauge, wheel alignment, door squeaks, and road noises. Plaintiff testified to crashing noise when driving the car, valve trouble, vibration, a broken left rear spring, trouble when car was in reverse, tendency to veer to right, and temperature gauge trouble. Plaintiff testified that twice the car pulled to the right and he had to fight the wheel to keep the car on the road. In August 1959, on a trip to New England, the car caught on fire and burned out the wiring under the hood. The car was repaired temporarily at the place of the fire. Plaintiff's wife drove the automobile home and on the trip home, the drive shaft broke. This was replaced and upon instructions from the plaintiff, plaintiff's wife took the automobile to the place of business of the defendant and left it. Later that day plaintiff's wife talked by telephone to Elwood Fabert about the automobile and told him she had returned it on instructions of her husband. She testified Fabert told her the car was a lemon and he would try and get another for her; that the matter of car colors was discussed. A day or so later plaintiff and his wife went to see Fabert. They testified that he told them he was looking for a replacement and they again talked about the car colors. At that time Fabert told them he was no longer the Lincoln dealer. Mrs. Appleman asked Fabert what that meant to them and he told them it meant absolutely nothing, that if the Lincoln people did not replace the car he would; that he would sell the old car and stand the loss. Fabert in his testimony did not dispute the conversations with plaintiff and his wife about them returning the car and demanding another, or that he made effort to obtain a replacement car for them, but does deny that he made the statement that he would replace the car if Lincoln did not, or that he would sell it and stand the loss himself. There was testimony by the plaintiff that he had been buying cars from this dealer for about ten years, and that he had consistently refused to accept the customary warranty but had told the dealer that he looked to the dealer to stand back of the cars he sold. The witness Fabert denied having heard or taking part in such a conversation or agreement. Ford Motor Company, maker of the Lincoln was called but refused to replace the automobile. It did offer to repair the car, but this the plaintiff refused, stating the car was dangerous, and that it was not reasonably fit for the purpose for which it was intended. It is not in dispute, that when the car was delivered to the defendant company on August 24, 1959, by Mrs. Appleman, it was delivered for the purpose of finally returning it to the dealer on the ground that it was unfit. There was no further agreement or acts of the plaintiff to indicate that he would take the automobile back when repaired. Instead, he claimed breach of the implied warranty and demanded a new car. When this was not done, he brought suit on the implied warranty for the amount of the purchase price, plus expenditures for replacement of the drive shaft and towing. The matter was tried before the court and the court decreed: there was an implied warranty; the automobile was not of merchantable quality as impliedly so warranted; a rescission of the sale was made; the defendant waived a jury trial and the plaintiff was entitled to recover the original purchase price of $6,217.77 and costs of suit. Judgment was entered on the decree and the defendant appealed.

Defendant contends there was no breach of warranty and consequently no right on the part of the plaintiff to rescind the sale, and that the plaintiff had an adequate remedy at law and there was no equitable jurisdiction involved.

The first point raises the question of an implied warranty. There was no express warranty except the usual warranty against defects in workmanship and material for a period of ninety (90) days from date of sale. There was testimony that the plaintiff had talked with the dealer and its immediate predecessor and had refused to accept this usual express warranty, but had always bought his automobiles on the basis of an implied warranty that the dealer would stand behind the automobile sold. Both parties rely upon the provisions of Section 15 of Chapter 121 1/2 Ill. Rev. Stats. (Uniform Sales Act), the plaintiff contending that under this section there is an implied warranty that merchandise, whether sold under a trade name or not, is fit for the general purposes for which it is sold and that an automobile which is sold under a trade name carried with it an implied warranty of quality and fitness for use as an automobile. The defendant contends that the article sold, the Lincoln Premier automobile was a specified article, sold under its trade name and that there was no implied warranty as to its fitness for any particular purpose or that the article was of merchantable quality.

Section 15 Uniform Sales Act, provides:

"15. Implied warranties of quality.) 15. Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

"(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is as (an) implied warranty that the goods shall be reasonably fit for such purpose.

"(2) Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.

"(3) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.

"(4) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.

"(5) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usages of trade.

"(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith."

Defendant relies upon the case of Santa Rosa-Vallejo Tan. Co. v. Kronauer & Co., 228 Ill. App. 236. In that case leather of a certain grade, known in the trade as BB Harness Leather was ordered. When delivered the customer complained it was not up to grade. And the court in that case held that it was a sale under a trade name and there was no implied warranty of fitness of the merchandise for any particular purpose or any implied warranty of the quality of the merchandise, other than the same might be expressed in the particular kind of goods specified. That case cited as authority the case of Peoria Grape Sugar Co. v. Turney, 175 Ill. 631, 51 N.E. 587, which involved the sale of a certain grade of coal, and in that case ...


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