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MERIT MOTORS v. BARTHOLOMEW. (11/16/55)

November 16, 1955

MERIT MOTORS, INC., APPELLANT,
v.
BARTHOLOMEW.



Appeal, No. 170, Oct. T., 1955, from judgment of Municipal Court of Philadelphia County, Oct. T., 1953, No. 231, in case of Merit Motors, Inc. v. William Bartholomew and Allstate Insurance Company. Judgment for corporate defendant affirmed; order granting new trial as to individual defendant affirmed.

COUNSEL

Samuel J. Marks, for appellant.

Harry Goldbacher, for individual defendant.

Burton Caine, with him Robert B. Wolf and Wolf, Block, Schorr & Solis-Cohen, for corporate defendant, appellee.

Before Rhodes, P.j., Hirt, Ross, Wright, Woodside, and Ervin, JJ. (gunther, J., absent).

Author: Ervin

[ 179 Pa. Super. Page 577]

OPINION BY ERVIN, J.

This is an action in assumpsit wherein plaintiff, a corporation engaged in buying and selling used cars, sued the individual defendant, William Bartholomew, for the sum of $973.00, the balance claimed to be due on the sale of a 1949 Mercury sedan. The corporate defendant, Allstate Insurance Company, a company engaged in the business of writing automobile insurance, was joined in the suit on the theory that it agreed to finance the sale. The case was tried by the lower court without a jury and a finding entered in favor of the plaintiff and against Bartholomew in the sum of $828.90, being the balance of consideration ($973.00 less counterclaim of $232.91 for repairs), $740.09, plus interest of $88.81. The trial judge found in favor of Allstate. Plaintiff's motions for judgment non obstante veredicto and for a new trial as to Allstate were refused. As to Bartholomew, a new trial was granted to accord him the opportunity to prove the proper

[ 179 Pa. Super. Page 578]

    measure of damages for the breach of warranty of the automobile. The plaintiff appealed to this Court.

The lower court found as facts "that the 1949 Mercury sedan was not sold by the plaintiff in an 'as is' condition, but rather it represented and warranted the automobile would be taken to a repair shop and repaired and put in a first class and good mechanical condition; that defendant relied on the promises and was induced to believe this automobile, having been taken to an automobile service shop for servicing or repairing, was in a first class and good mechanical condition, when delivered to him; and that shortly after delivery he learned the automobile was not in a first class and good mechanical condition but rather it was defective and not as warranted; that defendant promptly notified plaintiff and endeavored to rescind the transaction, all of which plaintiff ignored; that, after said offer of rescission was ignored by the plaintiff, the individual defendant ordered payment stopped on the $973 check; that thereafter, however, the individual defendant did make use of the said automobile, having it inspected on several occasions, and operating it nearly one thousand miles; that the defendant had certain repairs costing $232.91 made to the automobile to put the car in an operating condition; that more repairs were necessary and should have been made to the automobile to remedy the defects existing on delivery and to put it in a condition to comply with the plaintiff's warranties; that the individual defendant has possession and title of the 1949 Mercury sedan but the plaintiff no longer has possession of the 1940 Mercury sedan (the automobile traded in by the individual defendant) it having disposed of it by sale before the date of this trial; that the plaintiff and the individual defendant valued the said 1940 Mercury sedan of the defendant at $500; that the plaintiff sought and induced

[ 179 Pa. Super. Page 579]

    the corporate defendant to aid it in financing the transaction with the individual defendant; that the corporate defendant did not finance the individual or the transaction between him and the plaintiff; that the Second National Bank did finance the transaction and as part of its agreement of financing took a lien on the 1949 automobile which the plaintiff filed with the Secretary of Revenue (Motor Vehicles Division) on the said financed automobile; that the corporate defendant is not a maker or endorser of the $973 check; that at the request of the plaintiff it merely acted as agent for the Second National Bank to aid plaintiff in financing the transaction; that the ...


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