Gates v. DykesGates v. Dykes
Plaintiff, Lawrence T. Gates, sued defendant George Dykes, doing business as Dykes Motor Company, for $1,425.75, the alleged cost of repairing redhibitory defects in a 1972 Chevrolet one ton pickup truck purchased by plaintiff from defendant. Defendant filed an answer alleging that the vehicle was not guaranteed and also setting up other defenses. Neither defendant nor his attorney appeared at the trial of the case. On discovering that the case had been tried and judgment rendered against him for $1,148.75, defendant filed a motion for a new trial, alleging that he had not been notified of the trial date. The motion for a new trial was denied, and defendant appeals.
We reverse and remand the case for a new trial for the sole purpose of determining the cost of acquiring and installing a motor in plaintiff‘s truck comparable to the one he reasonably believed powered the truck when he acquired it from defendant.
There were unsuccessful attempts prior to trial by plaintiff‘s counsel and the trial judge to locate defendant‘s attorney and give him actual notice of the trial. Defendant‘s attorney made no allegation that he requested a written notice of the trial date to which he was entitled under
Plaintiff bought a one ton 1972 Chevrolet truck guaranteed to contain all original equipment (the vehicle was originally equipped with a 350 cubic inch engine). The truck was further guaranteed to have been driven only approximately 36,000 miles, and to be fully capable of pulling a four-horse goose-neck trailer. Shortly after plaintiff acquired the truck, he took a trip in it pulling a four-horse trailer, and found that the engine used 7 or 8 quarts of oil per 1,000 miles, would strain at a speed of 55 miles per hour on a level road and the truck would only travel 35 miles per hour up slight inclines. Plaintiff subsequently learned that the motor in the truck was not a 350 cubic inch engine, the original equipment provided in the truck, but was a 283 cubic inch engine normally found in a 1965 or 1966 Chevrolet automobile which provided grossly inadequate power for the truck to pull plaintiff‘s trailer. These facts were all proven on the trial of the case.
Plaintiff‘s cause of action is based upon
“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”
Our jurisprudence has established that the proper amount of the reduction in price in an action asserted under this Code article is the amount of difference between the actual sales price and the price a reasonable buyer and seller would agree upon, knowing of the defects. Cost of repairs or replacement can be one method of arriving at this theoretical price. Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App., 3d Cir. 1975); Menville v. Stephens Chevrolet, Inc., 300 So.2d 858 (La.App., 4th Cir. 1974).
As proof of his damages, plaintiff offered into evidence a Red River Motor Company estimate reflecting that the cost of installing a new 1975 Chevrolet 350 cubic inch engine in plaintiff‘s truck would be $1,148.75. Defendant assigns as error the trial court‘s award to plaintiff of the replacement cost of a new 1975 350 cubic inch engine.
The trial court‘s award of $1,148.75 was not the cost of replacing a 1972 350 cubic inch engine with 36,000 miles thereon in plaintiff‘s truck.
The defendant also contends judgment was based only on a motor company‘s estimate unsupported by the testimony of the preparer, which was inadmissible hearsay evidence.
The judgment of the trial court for an incorrect amount based upon incompetent evidence is reversed. We remand this case for further proceedings for the sole purpose of determining the cost of acquiring and installing in plaintiff‘s truck a motor comparable to the one he reasonably believed powered the truck which he acquired from defendant. Upon making this determination, the trial court shall render a judgment in favor of plaintiff for this amount.
The costs of this appeal are assessed equally against plaintiff and defendant.
Reversed and remanded.