197 P. 147 | Cal. Ct. App. | 1921
The plaintiff brought this action against the defendant to recover damages for an alleged breach of warranty. A trial was had in the lower court *434 and at the end of the plaintiff's case the defendant moved for a nonsuit. The motion was granted, judgment was entered for the defendant, and the plaintiff appealed under section 953a of the Code of Civil Procedure. At the time the motion was granted the trial court had received considerable parol evidence on the issue as to what warranties, if any, were made. Such evidence was introduced over the objection and exception of the respondent. If the oral evidence was admissible the lower court erred in granting the nonsuit. If the evidence was inadmissible the lower court erred in receiving the evidence, but cured the error by granting the nonsuit.
[1] In the first place, we will, therefore, examine into the question as to the admissibility of the evidence which was tendered and received. The appellant had bought a second-hand automobile from the respondent. The purchase was evidenced by a formal written transfer which was signed by the buyer and by the seller. The subject of the sale is described as "One Reo Automobile Motor No. _____ Touring body _______ with complete equipment. Serial No. 9935." The writing contains nothing as to condition. On the trial the appellant introduced oral testimony that the respondent had, just prior to the sale, represented that the sale was to include "One Reo Automobile with complete equipment," and also two used casings for extras and three or four used tubes all in first-class A-1 condition. The respondent also introduced oral testimony that the property as delivered was not in first-class A-1 condition and that the extra tubes and casings were not delivered at all. At all times the respondent objected that the oral representations, as to the articles covered by the sale and as to the condition of the same, were incompetent and that the whole subject was covered by the written contract.
The appellant contends that the evidence was properly received and in support of her contention she citesMaxson v. Llewelyn,
[3] The appellant cites section 1767 of the Civil Code and contends that an implied warranty exists under the facts of this case. The undisputed facts show, among other things, that the seller was not the manufacturer of the machine in question; that he had for some time been using it; that it was a second-hand car; that it was present during nearly all of the negotiations and that the seller stated to the buyer that she could have it examined by any mechanic, *436
but that she did not do so. The record does not show that it was at any time claimed, or that it is now claimed, that the seller occupied any position of trust or confidence toward the buyer. In Kellogg Bridge Co. v. Hamilton,
Excluding from our consideration the oral testimony that was introduced over the objection and exception of the respondent, there was no evidence of a breach of any express *437 warranty nor of the breach of any implied warranty. The trial court did not err, therefore, in granting the motion.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred.