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September 20, 1956


The opinion of the court was delivered by: Oxner, Justice.

September 20, 1956.

This is an action against the dealer and manufacturer to recover damages for alleged breach of an automobile warranty.

The trial resulted in a verdict for plaintiff against both defendants in the amount of $1,500.00. The trial Judge concluded that the verdict was excessive and granted a new trial unless plaintiff remitted on the record $500.00 of the verdict. This was done and judgment entered for $1,000.00.

The questions for determination are: (1) Did the trial Judge err in refusing a motion by defendants for a directed verdict? (2) Are the defendants entitled to a new trial because of errors in the charge? (3) Did the trial Judge err in refusing to reduce the verdict below $1,000.00?

On February 10, 1953, respondent, W.L. Cannon, purchased a new 1953 Ford automobile from appellant Pulliam Motor Company, then Wilson Motor Company, an authorized Ford dealer in Columbia. The total purchase price, with extras, was $2,460.78. The buyer was allowed $780.78 for a 1947 Pontiac automobile and paid the difference of $1,680.00 in cash. Along with the new car he received the usual Ford Motor Company warranty, the pertinent portion of which is as follows:

"The Ford Motor Company warrants all such parts of new Ford automobiles, trucks and chassis, except tires, for a period of ninety (90) days from the date of original delivery to the purchaser of each new Ford vehicle or before such vehicle has been driven 4,000 miles, whichever event shall first occur, as shall, under normal use and service, appear to it to have been defective in workmanship or material. This warranty shall be limited to shipment, to the purchaser without charge, except for transportation, of the part or parts intended to replace those acknowledged by the Ford Motor Company to be defective. * * * This warranty is expressly in lieu of all other warranties expressed or implied and all other obligations or liabilities on the part of the Ford Motor Company. * * *."

In the contract of sale signed by the purchaser and dealer, the following appears:

"It is agreed and understood that no warranties of any kind or character, either expressed or implied, are made by you of and concerning the car to be delivered to me, other than the usual manufacturer's warranties."

Trouble developed almost immediately after respondent purchased the automobile. He says that it would "buck, slip, and jump", and there was "a terrible noise in the engine." Within less than a week the car was taken back to the dealer and left for a day. Respondent noticed no improvement. He continued to take the car back to the service department of the dealer. He says he did so about twice a week for a period of several months but the trouble was not remedied. During the latter part of March, he also took the car to two independent mechanics who told him there was considerable vibration in the motor but since the warranty period had not expired, the car should be taken back to the dealer. Finally, a Ford representative came to Columbia and after examining the car remarked, according to respondent, that "there is something terribly wrong with your motor", and that he would have to tear it down and replace the parts causing the noise. Respondent refused to permit this, stating that he did not want a rebuilt or reconditioned motor and suggested that a new one be installed. The dealer refused to do so.

Sometime later the dealer offered respondent a new car upon the payment of $150.00. Respondent declined this offer, explaining that it would involve a loss of more than $300.00 since he had placed additional accessories on his car costing around $168.00. The parties being unable to adjust their differences, respondent in September, 1953, traded this Ford automobile for an Oldsmobile and was allowed $2,236.00 on the trade.

It seems to be conceded that there was some vibration in the motor. Two of the dealer's mechanics said that this was common to all motors of this model. One of them testified as follows:

"Q. Now, you say that all these models had that rattle or roaring in them? A. They had some type of vibration or roar, or whatever you want to call it.

"Q. The whole output of 1953 had that roaring in them? A. Yes, sir."

Prior to respondent's trading the car, the dealer, in an effort to remedy the defects, replaced the water pump, driving shaft, bumper guard, distributor diaphragm, pilot bearing, timing gear and ...

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