Edward J. Harkins, Robert J. Wharton, and Harkins & Wharton, all of Johnstown, for appellant.
Samuel R. Di Francesco, Johnstown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 318]
This action of assumpsit was brought to recover the sum of $1,550, averred to be the agreed value of a used car transferred by the plaintiff to the defendant. After a jury verdict for the plaintiff in the amount of $1,200, and defendant's motions for judgment n.o.v. and for a new trial were refused, judgment was entered on the verdict and this appeal was taken by the defendant.
[ 170 Pa. Super. Page 319]
Belle Motor Company, a partnership, was the Kaiser-Frazer automobile dealer for Johnstown from 1946 to September of 1949. In July of 1949 the plaintiff arranged to purchase a 1951 Frazer automobile from Belle Motor Company. At that time he owned a 1949 Frazer which the transferred to the dealer for an agreed sum to be applied as a credit against the price of the 1951 Frazer when it was delivered.
Before making delivery of the new car to the plaintiff and after disposing of his old car without paying him for it, Belle Motor Company lost the Kaiser-Frazer franchise and the Zamer Motor Sales Company, defendant herein, became its successor. In recognition of the obligation of the Belle Company to the plaintiff, Phillip Belle, one of the partners, made available to him a 1948 Frazer automobile. This car had been taken in on a trade by Belle from one Andrew LaPorte. The title certificate for this car was registered in LaPorte's name, but Belle had possession of it together with an assignment in blank thereof executed by LaPorte. On January 24, 1950, the plaintiff and Phillip Belle went to the defendant's place of business, taking with them the 1948 Frazer, to negotiate a trade of the 1948 Frazer for a 1951 Frazer. The bargaining which culminated in the transaction which gave rise to this action was conducted on behalf of the defendant by C. W. Klahre, a salesman, with the consent and active participation of John E. Zamer, president of the defendant corporation.
The defendant's chief mechanic inspected the 1948 Frazer. It was road-tested by being driven a distance of 1 1/2 to 2 miles; the mechanic opened the hood, got under the car, shook it up and down and finally compared its condition against a 50-question 'check sheet' supplied to the dealer by the manufacturer for the purpose. At the conclusion of this inspection, the mechanic
[ 170 Pa. Super. Page 320]
stated that there was nothing wrong with the car except brakes which were a little tight and a burned value. Klahre asked Belle if the car was in 'saleable condition' and received an affirmative answer. Belle knew that the 1948 Frazer had been in an accident and repaired, but this circumstance was not known to the plaintiff.
Following the report of the mechanic, the plaintiff, Belle, Klahre and Zamer went into an office and it was there agreed that the defendant would allow the plaintiff $1,550 on the 1948 Frazer. A form designated as a 'Used Car Order' was provided by the defendant, and the salesman Klahre made the following notations: After the words Dealer's Name there was written 'Zamer Motor Co.'; after Cash Price of Car, the phrase 'List at time of purchase'; after Used Car Allowance, the figure ...