Opinion
Feb. 25, 1970. Not Selectecd for Publication.
Raymond Duitch, Colorado Springs, for plaintiff in error.
Hecox & Tolley, Colorado Springs, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as they appeared in the trial court and will be referred to as plaintiff and defendant.
In her complaint, plaintiff alleged that she 'contracted with the defendant for delivery of a new automobile.' She alleged that defendant breached the contract by delivering a car which had been damaged and repaired instead of a new car. Plaintiff further alleged that defendant knew of the damage and fraudulently concealed it from the plaintiff. Defendant admitted the sale of the automobile and denied all other allegations.
Trial was to a jury. The order for the new car was received in evidence. Plaintiff testified that the condition of the car was not apparent to her when it was delivered and that it was some time later that her mechanic discovered that the car had been damaged and repaired.
During the presentation of the case in chief and before he rested, plaintiff's attorney stated (as he did in his opening statement) that plaintiff could not prove that defendant knew that the car was not new at the time it delivered the car to plaintiff.
On the basis of counsel's statement, the court dismissed the case saying:
'* * * (T)hat before liability can attach either in tort or contract, there has to be either knowledge in tort and a wrongful act, or in contracts there has to be some fraudulent concealment of a known fact.'
Plaintiff established a prima facie case for the recovery of the damages, if any, which she sustained as a result of the failure of the seller to perform its contractual obligation to deliver a car in conformity with the description of the car in the contract. It was not necessary for the plaintiff to allege or prove that defendant had knowledge of the nonconformity of the car delivered. Shippen v. Bowen, 122 U.S. 575, 576, 7 S.Ct. 1283, 30 L.Ed. 1172; Lathrop v. Maddux, 58 Colo. 258, 144 P. 870 (1914).
The sales contract required defendant to deliver a 'new' car. There is no doubt that the car actually delivered was not 'new'. During the argument on the motion to dismiss, the trial court in commenting on the condition of the car said, 'Why, by no stretch of the imagination is it new.'
It was error for the court to rule in the present action that plaintiff could not recover unless she could establish Scienter on the part of the defendant. No opinion is expressed concerning the other issues in the case.
The judgment is reversed and the cause remanded for a new trial in conformity with this opinion.
ENOCH and DUFFORD, JJ., concur.