APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 7, 1973.
Frontier Ford Motors, Inc., the defendant, appeals from an adverse judgment entered on a jury verdict awarding the plaintiff, Charles J. Hurley, damages of $3,600 and costs in a suit arising from the sale of a used car. Defendant claims that the court erred in denying a motion to strike portions of Count II of the third amended complaint; in admitting certain parol evidence at trial; in refusing to direct a verdict at the close of plaintiff's case; and in refusing to submit special interrogatories tendered by the defendant. Defendant further contends that the amount of the verdict is not related to the evidence bearing on damages. Defendant asks that we enter judgment in its favor or grant a new trial on Count II of the complaint and remand for a new trial on Count I of the complaint. Defendant does not request judgment be entered in its favor on Count I.
The complaint, as filed, essentially alleges that on April 26, 1969, plaintiff saw a 1964 Buick Riviera for sale at defendant's premises, priced at $1,895, that defendant's salesman and agent, Terry Day, represented that the car required repairs, consisting of installation of a manifold exhaust, muffler and tailpipe; that Day concealed from plaintiff the fact that the car had been in a wreck which had caused the frame to be twisted, the shock absorbers torn loose, the exhaust system to be broken completely and the gas tank to be punctured; that plaintiff desired to examine the car but was refused the right (emphasis added); that after some negotiation plaintiff and Day agreed that defendant would sell the Riviera in exchange for plaintiff's 1963 two-door Pontiac Catalina and $802.99 to be paid by plaintiff; that to induce the plaintiff to enter into the agreement, Day said that all of the repairs to the Buick would be made by defendant free of charge; that plaintiff entered into the agreement, paid the $802.99 and conveyed title to his car, but that when he came to pick up the Buick he was refused possession unless he would pay $110 in repairs.
The contract attached to the complaint contains in bold type on its face the provision: ALL USED CARS SOLD "AS IS" UNLESS OTHERWISE INDICATED HERE. Immediately below this disclaimer is the handwritten statement which plaintiff had initialed, "15% Discount Parts & Labor for 24 months otherwise as is". No specific reference to any exhaust, muffler or tailpipe repairs appears. The agreement also contains the provision that any warranties are either contained on the face of the document or in a separate written instrument, if any; that the entire agreement pertaining to the purchase is contained in the document; and that no other agreement, verbal understanding or promise is to be recognized.
On defendant's motion the court struck the allegations emphasized above. The motion stated that there was no allegation defendant knew of the information in question; and that even if the allegations were amended to include such knowledge, they would sound in fraud and be irrelevant to plaintiff's action for breach of contract. Another reference to "fraud" was also stricken from the complaint.
Plaintiff added Count II as an amendment to the complaint. Count II, based on fraudulent concealment and fraudulent misrepresentation, was itself amended twice to read as material here:
"3. That the Buick Riviera automobile had been in a wreck which caused the frame to be twisted, the shock absorbers to be torn loose, the exhaust system to be broken completely and the gas tank to be punctured. These damages to the car were material. In order to repair them, a large expenditure of money was required. The damage to the frame could have affected the use of the automobile from that time on unless it were properly repaired.
4. The said Terry Day, the agent and servant of the defendant, owed to the plaintiff the duty of disclosing truthfully the condition of the Buick Riviera automobile. Terry Day either knew the automobile had suffered more extensive damage than he represented or had he made an examination of the automobile he would have known that it had been damaged to a greater extent than he represented.
5. The said Terry Day stated the Buick Riviera automobile only required a manifold exhaust and that the muffler and tailpipes had to be installed, without making an examination of said automobile to determine whether it had been more seriously damaged. The damages which the automobile had suffered were material to the plaintiff's use and enjoyment of it and were more extensive than represented by the said Terry Day.
6. The plaintiff desired to examine the automobile but was refused the right to examine it.
7. After some negotiation the plaintiff, relying on the representation of Terry Day, the agent and servant of the defendant, agreed the defendant would sell the 1964 Buick Riviera automobile to the plaintiff, providing the plaintiff delivered title issued by the State of Illinois covering his 1963 Pontiac two-door Catalina Hardtop automobile and would pay the sum of $802.99. As a further inducement to the plaintiff to enter into said agreement, the agent of the defendant stated that all repairs which he had outlined as necessary; namely, the manifold exhaust and the muffler and tailpipes which had to be installed, would be made free of charge to the plaintiff by the defendant corporation." (Emphasis added.)
Defendant moved to strike the emphasized portions of the above pleading as conclusionary and insufficient to make out a cause of action for fraudulent concealment. The court denied the motion to strike, and we find no reversible error in this ruling.
• 1 It is true that the allegation as to duty in paragraph 4 is conclusionary and surplusage. (Darling v. Charleston Memorial Hospital (1964), 50 Ill. App.2d 253, at 310, aff'd 33 Ill.2d 326.) However, since there are factual allegations sufficient to give rise to the duty of disclosure, the failure to strike the allegations as to duty is harmless. Darling v. Charleston ...