Victor J. Roberts, High, Swartz, Childs & Roberts, Norristown, for appellants.
Desmond J. McTighe, Jesse W. Beeghley, Jr., Duffy, McTighe & McElhone, Norristown, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross and Gunther, JJ.
[ 174 Pa. Super. Page 91]
The plaintiffs on November 17, 1949, bought a new Willys-Overland Station Wagon from the defendant-dealer and paid the full purchase price of $1,910.40. Eight days later while Mable F. Knapp was driving on Haverford Avenue in the Borough of Narberth, the steering mechanism, without warning, failed to function.
[ 174 Pa. Super. Page 92]
The car, out of control, 'pulled sharply to the right' over the curb and into a telephone pole. After the collision it was noted that the tie rod at the right end of the steering assembly had become disconnected and had dropped to the ground; further inspection disclosed that the rod had been bent and a connecting sleeve or turnbuckle had been broken. The car was removed from the scene of the collision by the defendant and it has since been in its possession.
Plaintiffs, shortly after the failure of the car, rescinded the sale and demanded a return of the purchase price or the delivery of a new car to them. The defendant refused to comply with either alternative demand but offered to repair the automobile and put it in as good condition as it was before the mishap. The offer was unacceptable to plaintiffs and they thereupon brought this action in assumpsit. The case was tried on the theory that defendant was bound to repay the purchase price to plaintiffs on the implied warranty that the automobile when sold was of merchantable quality. The jury found for the plaintiffs in the full amount of their claim with interest, and judgment was entered on the verdict. We are unable to find merit in defendant's contention, in this appeal, that the court erred in refusing to enter judgment n. o. v. The appeal is ruled by principles, enunciated in Ebbert v. Philadelphia Elec. Co., 126 Pa. Super. 351, 191 A. 384, affirmed in 330 Pa. 257, 198 A. 323, and more recently applied in Frantz Equip. Co. v. Leo Butler Co., 370 Pa. 459, 88 A.2d 702.
The Uniform Sales Act of May 19, 1915, P.L. 543, in the second clause of § 15, 69 P.S. § 124, provides: 'Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.'
[ 174 Pa. Super. Page 93]
Plaintiffs were interested in buying a station wagon but were not committed to any particular type. In the middle of October 1949 they went to defendant's place of business and were shown a Willys Station Wagon there on display. They were also taken for a ride in a similar car, used by defendant as a demonstrator and were given sales literature containing photographs and specifications in technical detail of various features of the car which it was alleged made for superior performance over other station wagons. In the light of the verdict, we are bound to take it as established that when plaintiffs subsequently decided to buy the car, they bought it 'by description' within the purview of § 15 of the Sales Act charging defendant with a warranty by implication that the car delivered was of merchantable quality. The fourth clause of § 15 of the Act provides that 'In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.' But, under the holding of the Frantz case, supra, 370 Pa. at page 464, 88 A.2d at page 705, even if plaintiffs bought the car under the trade name of 'Willys Station Wagon' the defendant is not relieved of an implied warranty of merchantable quality. The Frantz case put that question to rest in this language: 'The difference between these two warranties is well stated in Dunbar Bros. Co. v. Consolidated Iron-Steel Mfg. Co., 2 Cir., 23 F.2d 416, 419, as follows: 'A warrant of merchantability is a ...