Lead Opinion
June 22, 1927, defendant bought a secondhand Dodge sedan from plaintiff company for $650 on which he paid $150 cash, leaving a balance of $432, for which he gave twelve notes of $36 each, payable monthly. He paid six notes and stopped further payments. This, suit is brought against defendant on the six notes subsequently due which represent the balance on the purchase price of the auto.
The prayer in the answer of defendant is for a rescission of the sale, and a rejection of the demand.
The judgment below was for a reduction of the price to the sum of $216, the- amount claimed, which was denied.
Plaintiff appeals.
In a redhibitory suit, the judge may decree merely a reduction of the price. C. C. art. 2544. Ehrlich et al. v. Roby Motors Co.,
In the answer of defendant it is alleged that the auto was in an “unusable condition,” was mere “junk,” and had never run satisfactorily from the time of its delivery. These averments present 'the issue of redhibition which authorized the decree for a reduction of the price, particularly as the evidence introduced in the case was in support of that defense.'
“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” C. C. art. 2520.
In every contract of sale the seller warrants the thing sold against hidden defects or its redhibitory vices. C. C. art. 2476.
In the case of Crawford v. Abbott Automobile Co.,
“Unless warranty is expressly waived seller warrants that the thing sold is. fit for the purpose intended.”
In that case in which reference was made to a secondhand machine, the thing sold here, the court said:
“A secondhand article must be fit to do the work intended,” which was approved in Jackson v. Breard Motor Co., Inc.,167 La. 857 ,120 So. 478 .
In the 157 La., above cited, the court said also that the “buyer n'eed not show particular cause of defects which make thing sold unfit for intended purpose, particularly when that thing is complicated machinery; proof of actual existence of such defects being sufficient.”
Edmonson, the salesman who sold the auto to defendant, says he told' the latter at the time of the sale that it was in first-class condition, but that he did not “guarantee it.” Whether or not he gave any such guaranty, the contract carried with it the implied warranty that it was in running condition and “fit for the purpose intended.” This warranty was necessarily implied in the sale under the ruling in the
The defendant testifies that his troubles with the car began about two weeks, after he had purchased it, which continued to increase until some' time about the month of December or January following the sale when it could no longer be used and when he abandoned it and stopped payment on the seventh promissory note. His testimony is that he spent $300 in trying to remedy the troubles he was experiencing with the car, but all without avail.
P. T. St. Amant, defendant’s nephew, says, about eight or ten days after his uncle had acquired the car in which he (witness) rode daily, the car began to miss and pump oil; that the pistons were worn out, and the rims and tires had to be changed.
Bell Gautreau, a tractor mechanic, having occasion to repair the auto, found that •the rims were bad, which was in July, about two months after the sale. He had to take the cylinder head off the motor; says the pistons, were loose, and that a valve was burned; that at every week-end there was some trouble with the car.
Breaud, an auto mechanic, says, when he first worked on the car, November 2, 1927, lie had to replace eight valves, and later, in the following. January and February, had to install on the car a timer, a cylinder gasket, and one valve. This mechanic admits tnat running a car without oil or water could, to a certain extent, place a car in that condition.
Stanhope, a general mechanic of long experience, and who operated a garage at Gonzales, worked on the car at various times. His. testimony is that the exhaust valves were burned out, that the wiring “was rotten,” and that he worked so often on the car that, to use his expression, “it was a botheration to me.” Stanhope was living at the time in Gonzales near the office of the defendant, Dr. St. Amant. He says he remembered when the defendant bought, about June, 1927, a- Dodge touring car. He says, however, that to the best of his knowledge defendant owned no other Dodge car at that particular time. His, testimony shows that his work was done on the Dodge sedan, the car in question.
Counsel for plaintiff contends that the condition in which the car was, as reflected by the testimony of these various witnesses, could have been brought about by a variety of causes.
Breaud, testifying for defendant, said that running a car without water or oil could place it in .that condition. There is no evidence to show that either- the defendant, Dr. St. Amant, or his nephew, who drove the car almost every day after its purchase, ever ran the car without water or fuel. There may be other causes which might bring about the condition which made its appearance in the car soon after the defendant began operating it. Such causes, if they existed, are not pointed out in the record, and, in reference thereto, we must say that there is no in
•The defendant testifies that work was done on the car in every garage from Gonzales to St. Amant, and that he actually spent $300 in his vain efforts to remedy the defects which interfered with the running of the car, finally culminating in its abandonment.
We think that plaintiff when it sold the car thought it was in running condition, otherwise it would be hard to explain why the salesman, Edmondson, who effected the deal would have represented it as being “in first class condition.”
No doubt, defendant thought it was at least in running condition, else he never would have purchased it for the general use expected of vehicles of that character.
The causes or defects which soon after the sale affected the running condition of the car, and .some months after actually put it out of commission, were certainly unknown to defendant when he bought it. The early manifestation of these defects which were not caused by defendant, as before stated, existed, as we must infer from the evidence, at the time of the sale or prior thereto,' and were hidden or latent. The sedan sold was a thing of complicated machinery, and in such a case, as was said in Crawford v. Abbott Automobile Co.,
Obviously, the running condition of the car could not be seen by defendant at the time of the sale, and could be found out only after it was. used. The latent defects likewise could not be detected at that time and which made their appearance soon after when the car was subjected to the usual service which demonstrated that it was “unfit for the intended purpose.” The defendant, however, not having to show the particular cause of such defects. Crawford v. Abbott Automobile Co.,
Counsel for plaintiff says that when the auto was delivered it was in running condition. Running condition, we think, means a little more than that; a car should keep in running order, at least, for more than a couple of weeks after its purchase, when it has been properly taken care of, as appears. to have been the case herein. The many defects, which soon made their appearance for the reasons hereinabove given, authorize the inference that the defects existed when the car was sold or before.
Counsel for plaintiff cites Civil Code, art. 2530, which says that the buyer must prove that the vice existed before the sale, and that, if it makes its appearance within three days immediately following, it is presumed to have existed before the sale.
The vice or defect in the auto did not appear in this car within three days; if it had, the presumption, of its existence
In order to ground this case on the basis upon which it should be solved, we must revert to the contention of plaintiff that when the auto was delivered it was in running condition. From the language of counsel, it would seem that its delivery in that condition comprised the full extent of plaintiff’s warranty under the sale.
Redhibition in a thing sold is a vice or defect rendering it absolutely useless, or its use so inconvenient and imperfect, it must be supposed the buyer would not have purchased had he known of the vice. C. C. art. 2520. This article clearly defines what a redhibitory vice or defect is, and the consequences therefrom which entitles the buyer to an avoidance of the sale.
Civil Code, art. 2476, provides for the warranty of the seller against the hidden defects or the redhibitory vices of the 'thing sold. If the thing sold is absolutely useless, or its use so inconvenient and imperfect, that it must be supposed it would not have been bought, it follows that the seller has not complied with his warranty. If the thing is so affected, it cannot be considered that the seller has sold a thing “fit for the purpose intended,’’ unless the warranty has been expressly waived, as. held in Crawford v. Abbott Automobile Co.,
Grounding ourselves on this rule of law, and on our application of the evidence, as hereinabove stated, we now pass to the real issue determinative of the case.
In reference to the vital question presented, counsel for plaintiff contends that defendant by paying six of the notes, by his conduct after the sale, and by the effect of letters written plaintiff, he accepted the auto and cannot now repudiate the contract by pleading or urging any defects in the car.
Plaintiff relies confidently on the case of Templeman Bros. Lumber Co. v. Fairbanks, Morse & Co.,
Plaintiff relies principally on the Templeman case,
In this case complaints were made to Edmonson, the salesman of the auto, by Dr. St. Amant, the purchaser, but counsel says it had no legal effect, as they should have been addressed to the home office of plaintiff company at Baton Rouge, only twenty-seven miles away. *
The evidence shows that defendant, not only made complaints to plaintiff’s local agent, hut that about October 1st, some three months after the sale, he sent his. nephew, P. T. St. Amant, to plaintiff’s office in Baton Rouge to lodge his complaint. The officers of the company being absent, St. Amant asked the stenographer to tell them that defendant did not want the car. Sending this messenger to the home office of plaintiff company for the purpose stated indicated very clearly that plaintiff was dissatisfied with the car, and did not intend to accept it. This fact, taken in connection with the previous complaints to Edmonson that the car was not rendering the services expected shows that defendant did not want the car, in which he was justified, considering the condition of the car at that time.
It is true that on January 27, 1928, in answer to a letter from plaintiff pressing defendant for payment, defendant, in a reply to that demand, wrote that “due to my slow collections, is the reason I’m behind with my notes; am trying to force collections since the election is over.’’ The date of this letter corresponds with the maturity of the seventh note when defendant stopped payment. Although the act of sale of the auto provides for the maturity of all the notes, if the purchaser defaulted in the payment of any' one of them, this suit was only instituted in July, 1928, and the answer was filed in October, 1928, more than one year subsequent to the sale, after the prescriptible period had run, precluding an avoidance of the contract for redhibitory defects, and compelling defendant to relief by demanding a reduction of the price.
Defendant admits in his testimony that the first written complaint he made to plaintiff company was by letter of date June 30, 1928, more than a year after the act of 'sale, which was executed June 22, 1927. The probabilities are that defendant got wind of the intended suit which was filed in July, 1928, and addressed that later to plaintiff company, which had allowed the notes to run more than six months after they became exigible by reason of the failure of defendant to honor the seventh note, although the letters of the plaintiff show that it was insistent in demanding the payment of the notes soon after they became overdue.
In referring to the defendant stopping payment of this seventh note, it must be noted that about that time, after making repeated efforts to remedy the defects so as to put the car in a running condition, the defendant then abandoned the car, or stopped using it, because, as he testified, he could not run it at all.
In connection with our reference to the condition of this auto at that time, it is proper to quote from the Templeman Bros., case, as follows: “But,” says the court, “it is impossible from plaintiffs’ conduct and letters to escape - the conclusion that they accepted the engine and are liable for the price, notwithstanding the fact that
Here the auto, did not run to the satisfaction of defendant from the very beginning, and, after repeated failures to remedy the defects which had manifested themselves in various forms, it would not run at all, became “absolutely useless,” as expressed in the Code, was, actually abandoned and junked, as it is alleged in defendant’s answer.
Is it fair or reasonable to believe that defendant had finally accepted that- machine in such a condition?
His conduct indicates that he was liberal in the expenditure of his money at the different garages for repairs, thinking that the defects would be finally remedied, and that the machine would be put in running order, but it is impossible to conclude that after he stopped payments, and had abandoned the machine, he was willing to accept it and pay the balance of the purchase price. We must hold otherwise, and affirm the judgment appealed from, which allowed a reduction of the price to the amount sued for and rejected the demand.
Rehearing
ON REHEARING
We find the case to be properly stated in the original opinion heretofore handed down, and it is unnecessary to here re-state it.
Dr. St. Amant states in his testimony on direct examination that “some time in December or January,” meaning December, 1927, or January, 1928, he “quit using the car altogether.” The automobile, as we recall by reference to the original opinion, was purchased June 22, 1927, six or seven months before he claims to have stopped using it altogether. In face of this testimony given by him, we nevertheless find him writing a letter to the plaintiff on January 27, 1928, which, because of its persuasive proof that he must have been mistaken as to the time he claims, to have given the car up, we reproduce in full:
“Gonzales, La. 1/27/28
“Standard Motor Car Co., Baton Rouge, La.
“Dear Sirs: Due to my slow collections, is the reason I’m behind with my notes; am trying to force collections since the election is over.
“Hoping this will be satisfactory,
“Yours truly,
“(Signed) G. S. St. Amant.”
It is difficult to believe that a business or professional man, especially a country doctor, who is almost in constant need of his car, would go on paying note after note on the purchase price of an automobile and then excuse himself for a delayed payment, if the car was in the condition Dr. St. Amant and his witnesses would have it appear that this car was. It is difficult to reconcile his actions with his testimony. We take Dr. St. Amant’s word for it, when he says that he did have some trouble with the car, but, to use the language of the Supreme Court in the case of Temple-man Bros. Lumber Co. v. Fairbanks, Morse & Co.,
It is- true that in the case of Templeman Bros. Lumber Co. v. Fairbanks, Morse & Co., supra, the court, on rehearing, relieved the purchaser from further payments, and in effect decreed a reduction of the price, as did the lower court in this case, but that was because, as stated in the opinion, the seller was held to the full knowledge of the defects in the particular piece of machinery sold, which had been complained of. There is. no evidence here by which the seller could be charged with such knowledge. On the contrary, the testimony is to the effect that, at the time the car was sold, it was in good running order and condition, and the purchaser was given the option, before buying, of having it examined by any mechanic of his own selection.
We have . examined the cases cited by counsel for defendant, and note that several hold that, even after having made several payments on the price of the article
We have reached the conclusion that the original opinion herein handed down was erroneous, and that the decision of the lower court should have been reversed.
For the reasons stated, it is now ordered that the judgment of the lower court which discharged the defendant from further liability for the payment of the notes herein sued on, as. well' as the original opinion of this court affirming the same, be, and they are both hereby, reversed, set aside, and avoided, and, it is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Lewis Gottlieb, doing business under the name of Standard Motor Car Company, and against the defendant, G. S. St. Amant, in the sum of ?216, with 8 per cent interest per annum from January 22, 1928, and 10 per cent on the amount of said principal and interest, as attorney’s, fees, and all costs of this proceeding.