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Collum v. Fred Tuch Buick

JUNE 20, 1972.

CURTIS COLLUM, JR., PLAINTIFF-APPELLANT,

v.

FRED TUCH BUICK ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN J. KAPLAN, Judge, presiding.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:

This action is brought by plaintiff to recover the price of a new automobile which he had purchased from the defendant, Fred Tuch Buick, agent for the manufacturer. The cause was tried by the court without a jury, and at the close of plaintiff's case, pursuant to defendant's motion, the court entered judgment for defendants. Plaintiff appeals, contending that:

(1) he was given an implied warranty by the dealer that the car was fit for use;

(2) the car was not fit for use, and he properly revoked the purchase, returned the automobile to defendant and brought this action against the dealer for the purchase price;

(3) the manufacturer breached the express warranty delivered to him at time of purchase; and

(4) the trial court erred in granting the defendant's motion for judgment.

The facts follow.

In March 1965, plaintiff purchased a new Buick automobile from defendant-agent Tuch Buick for approximately $4,000, paying $2,200 from his own funds and $1,800 from the proceeds of a bank loan. The automobile was manufactured by defendant General Motors who sold it to Tuch for resale to plaintiff. At the time of the sale, plaintiff was given a new car warranty which guaranteed the car to be free from defects in material or workmanship for 24 months, or 24,000 miles of driving, whichever occurred first.

Plaintiff testified that he took delivery of the car on April 2, 1965; that the next morning, after driving a short distance, the hot motor indicator lit up, and he heard a "squeaky" noise in the motor, which grew louder as the speed increased Plaintiff took the car to Tuch that day and told the service manager it was running hot and the engine was squeaking. The service manager told him to wait until the 1,000-mile checkup was due and then bring the car in for servicing.

Three or four days later plaintiff noticed that the hot indicator stayed on for about an hour after the car was started, then went off and on periodically. He also testified that the car sounded like a wind tunnel when it was driven over 60 miles an hour and made a bumping noise when a right turn was made.

Plaintiff further testified that when he brought the car to the dealer for the 1,000-mile checkup he told the service manager in detail about the various problems he had had with the car. He was told that all of the complaints would be checked, but when he picked the car up three days later, according to his testimony, none of the complaints had been remedied. He again brought the car to the dealer in May and told the service manager he was still having the same problems as before, and was told to leave the car for a week, as the engine might need a short block. On May 24, plaintiff returned to pick up the car and was told that a short block had been put in. When plaintiff told the dealer he was going to drive to Indianapolis he was told to get the car up to high speed — 100 to 110 miles per hour — and blow some carbon out of the engine. Plaintiff testified that he was informed that all the complaints had been corrected.

On May 27, 1965, plaintiff drove to Indianapolis; he got the car up to high speed [over 100 miles per hour], and when he arrived in Indianapolis and turned off the motor it continued to run for 20 to 30 minutes and was shaking and vibrating. Plaintiff testified that when he started the car the following day the heat indicator light came on, the motor started squeaking and made a bumping noise when the car was turned right. He stated that on the way back from Indianapolis to Chicago the car made these various sounds and that of a wind tunnel, and that when he pulled to the side of the road he saw smoke coming from the exhaust.

Plaintiff returned the car to the dealer on June 2 or 3, and told the service manager that none of his complaints had been remedied. He was informed that the dealer was busy and could not look at the car at that time; he was told to drive only in the City at a speed not exceeding 40 miles an hour, and to bring the car back. He took it back on June 6, 1965. When plaintiff returned to the dealer's place on June 22, the service manager went with him for a test drive at a speed of 75 miles an hour. Plaintiff stated the service manager agreed that the car sounded like a wind tunnel and was vibrating noisily. Plaintiff further testified that the service manager said he would have General Motors engineers look at the car because he could not correct the difficulty.

Plaintiff picked up the car on July 3 for use on the 4th and returned it to the dealer on the morning of July 6. He stated he told the service manager he should have a new car or a new motor; that the service manager and his assistant told plaintiff he had a "lemon" and should ...


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