52 A.2d 470 | Md. | 1947
The appellee in this case brought suit against the appellants who are automobile dealers, for damages resulting from his purchase, from them, of a used Studebaker automobile. The narr states that the defendants warranted the automobile to be in good operating condition; that it was not; that the price paid was $760.74; that in view of the condition of the automobile the price was in excess of the ceiling price as established by the Office of Price Administration, and therefore the plaintiff is entitled to recover damages in accordance with the price control statute enacted by Congress. 50 U.S.C.A. Appendix, Sec. 901 etseq. On demand a bill of particulars was furnished. It set out the details of the repairs made to the automobile, and claimed a total of three times the costs of these repairs, amounting to $844.14. The defendants filed the general issue pleas. The case was tried before the Court of Common Pleas of Baltimore City *332 without a jury, and a judgment was entered in favor of the plaintiff-appellee for the amount of the repairs or replacements put upon the car without any multiplication. This amount was $281.38. From this judgment, the defendants appealed.
The evidence shows that on January 4, 1946, the date of the purchase, the "as is" price allowed by the price control regulations for a 1940 Studebaker car of the model sold, was $594.00. The price when warranted, was $743. If, in addition there was a heater put in the car, the warranted price of which was $11.53, the price would be $754.53. This was the exact selling price of the car, the additional $6.21 being for tags, title and anti-freeze mixture. A warranty was given by the appellants. It reads as follows:
"The used vehicle described below, is hereby warranted to be in good operating condition, and to remain in such condition under normal use and service for a period of 30 days after delivery, or 1,000 miles, whichever may first occur.
"We agree, if said car is delivered during the above period to our place of business, to make with reasonable promptness any repairs or replacements which may be necessary to its good operating condition in accordance with normal use and service, at a cost to the purchaser named below of not more than 50% of the normal charge for such repairs and replacements. Our normal charge is not in excess of OPA ceilings.
"This warranty does not extend to tires, tubes, paint, glass, upholstery, or to any repairs or replacements made necessary by misuse, negligence, or accident."
Without detailing the testimony it is sufficient to say the evidence shows that when the car was bought the appellee had his father, who was a skilled mechanic, go over the car. He found that the bearings were bad and he thought the piston rings should be changed. The appellants did check the bearings, and offered to do the piston ring job on a 50% basis, but this was not accepted by the appellee. He then purchased the car and drove *333 it about a week. It then began to get noisy. He did not take the car back to the appellants, but took it to the repair firm of White Son and paid them $24.00 for certain replacements they put in. Subsequently, appellee's father again examined the car and found it would have to be overhauled. It was not taken to the appellants. The appellee took it to the Baltimore Automotive Service on January 19th. There it was found that either a reground crank shaft or a new one had to be put in. A new clutch, rings, pistons, etc. would be included. The Baltimore Automotive Service put in a new engine and the other parts, for which they were paid $222.38. Later the car was again taken, not to the appellants but to White Son. They relined the brakes, and made other repairs at a cost of $35.00. The evidence does not show that the car was taken back to the appellants during the period of thirty days after January 6th for the purpose of making any of these repairs or replacements, nor does it show that they declined to make any of them.
The learned judge below held that the warranty was severable. The first clause, in his opinion, represented the terms on which the car was sold and warranted it to be in good operating condition. The second clause, he found, was an agreement to make repairs on a 50% basis if the dealers made them. We have reached a different conclusion.
It seems clear to us that the plain meaning of the warranty is that if the car is found not to be in good operating condition at any time for thirty days after delivery (or 1,000 miles) and if it is delivered during said period to the dealers, they will make any repairs or replacements necessary to put it in such condition in accordance with normal use and service at a cost of 50%. That is one warranty, not two. If the first paragraph were not modified by the second, then the dealers would be responsible for any repairs necessary to put the car in good operating condition, whether done by them or anyone else. The second paragraph, however provides what they are to do if the car is not in good *334 operating condition. This is to make repairs at 50% of the normal charge, if the car is delivered to their place of business. This last clause would be entirely meaningless if the purchaser could take the car to someone else for the repairs, and then recover the full amount from the dealers. No purchaser would bring a car back to be repaired by the dealers and pay 50% of the cost, if he could have it repaired elsewhere, and recover all the cost. The warranty was one prescribed by the Office of Price Control for the obvious purpose of protecting purchasers at a time when all sorts of infirm and decrepit used cars were being eagerly bought. Dealers were allowed to sell such cars at a higher price if they warranted them with a qualified warranty. Had an unqualified warranty been required, it may be reasonably supposed that dealers would not have been willing to give it on the grades of cars passing through their hands.
The speedometer on the car in this case showed that it had been driven approximately 70,000 miles. We are not required to find whether or not it was in good operating condition, or whether the repairs made in this case were necessary to put it in such condition, because we do not think the appellants are liable for them. Were they necessary and had the car been returned to them within thirty days, they would have been obliged to repair it, and could charge the appellee only 50% of the cost. Since the car was not brought to them, and they did not make the repairs, and it is not shown that they refused to make them, the appellee has not done what was required of him under the warranty, and, therefore, he cannot recover. The appellee relies upon the case of White Automobile Co. v. Dorsey,
The same construction of the warranty is given in Price Regulation 540 of the Office of Price Control, of which we take judicial notice. The Federal Register Act of 1935, 49 Statutes, 500, 501, 502, 44 U.S.C.A., Secs. 301, 305(a), 307. EmergencyPrice Control Act, 56 Statutes 23, 50 U.S.C.A. Appendix, Sec. 901 et seq. Morrison v. Hutchins,
For the reasons above stated the judgment will be reversed and a judgment entered for the appellants for costs.
Judgment reversed with costs and judgment entered for theappellants for costs.