Appeal from the Circuit Court of St. Clair County; the Hon.
QUINTEN SPIVEY, Judge, presiding. Reversed and remanded.
In this suit, the purchaser of a new automobile seeks to recover the purchase price thereof from the dealer. The plaintiff claims that the automobile was so defective that it was unfit to use, and he therefore should have his money back. The case comes to us on the pleadings.
The plaintiff alleges in his Amended Complaint that on October 17, 1957 he purchased a new Edsel automobile from the defendant dealer for the sum of $3,633.95. He states that he is a farmer, and that the car was bought for business and pleasure. He goes on to allege that the automobile was so imperfect and defective that it could not be used. Specifically, he states that on the day the automobile was delivered there was a loud knock in the motor but that the defendant's agents told him this would disappear after he had driven the auto; that he and his wife undertook to drive the auto to their home, but that while they were on the way it became inoperable; that he returned the car to the dealer and said dealer undertook to remedy the defects in order to get the automobile to operate, but that said automobile never did operate properly; that on December 9, 1957, he returned said automobile to the defendant where the defendant again undertook to correct the defects therein, and that on said date the defendant admitted that the automobile had defective parts which affected its performance, stability and reliability; that on said date the defendant installed new valve rocker arms, a new gasket, made adjustments in the distributor and timing and made other alterations.
Plaintiff goes on to allege that the automobile again refused to function and that on December 27, he returned it to the defendant where the defendant replaced two hydraulic valve lifts, 12 valve push rods, 10 valve rocker arms and adjusted the rear motor mounts, but that, and in spite of the defendant's assurances that said automobile would run properly, the loud noise in the motor continued and at times the automobile would stop on the highway.
Plaintiff further alleged that on January 6, 1958 he returned the car to the defendant, and the defendant replaced four valve push rods and two valve rocker arm-shafts, but that said automobile continued to run improperly and stopped several times on the highway and had to be towed home; that again on February 4, 1958, he returned the car to the dealer at which time the dealer replaced the camshaft, 16 hydraulic valve lifts and a number of gaskets, but the automobile still would not operate; that again on March 24, 1958, the plaintiff returned said automobile at which time the defendant replaced 16 rocker arms, the water pump, gaskets and made many other adjustments, acknowledging that the said parts were defective and imperfect, but that notwithstanding such replacements the automobile still did not operate properly. The plaintiff finally alleges that on May 26, 1958 he had the automobile towed from his home to the defendant's place of business and demanded the return of his money.
The prayer is for the return of the purchase price and for monies the plaintiff alleges he expended in endeavoring to get said automobile to properly operate.
In the pleadings, the parties set up the warranties involved in the sale and the pertinent provisions of the Uniform Sales Act which are involved.
Regarding the warranties: It is alleged that the defendant, at the time of said sale, in writing, warranted that said automobile and each and every part thereof was free, under normal use and circumstances, from defects in material and workmanship until such product had been used and operated for a distance of 4,000 miles or for a period of 90 days from the date of delivery, whichever event first occurred. This warranty further provided that it was "expressly in lieu of all other warranties, express or implied, and of all other obligations or liabilities on the part of the dealer."
Concerning the Uniform Sales Act (then in force, but now superseded by the new Uniform Commercial Code): The plaintiff relies upon section 15, subsections (1) and (6). Subsection (1) reads as follows:
"(1) Where the buyer, expressly or by implications, 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."
And subsection (6) is as follows:
"(6) An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith."
The defendant relies upon section 71 of said Uniform Sales Act which is as follows:
"71. Where any right, duty or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom ...