Opinion
Hearing Granted by Supreme Court Jan. 12, 1928.
Appeal from Superior Court, Yolo County; W. A. Anderson, Judge.
Action on a conditional sales agreement by E. A. Ferguson against Fred Koch. Judgment for defendant, and plaintiff appeals. Reversed. COUNSEL
W. E. Davies, of Marysville, for appellant.
A. G. Bailey, of Woodland, for respondent.
OPINION
WEYAND, Justice pro tem.
The plaintiff, appellant herein, by written contract, sold to the defendant, respondent here, a Reo auto truck. The machine had been "made over" from an old Reo automobile of the touring car type. In the contract, however, the machine was not denominated a truck, but was referred to as a "Reo chassis." Before making the agreement of sale and purchase, the defendant made two examinations of the truck. One was made at plaintiff’s place of business, and while the machine was stored there, and one examination was made after the car had been towed to defendant’s place of business, some 40 miles distant. Upon the second examination, some parts of the engine were removed and the cylinders were examined. Thereupon a written agreement of sale and purchase was made out by the seller, and the same was signed by both parties to this action. This written agreement was in the following language:
"Robbins, Sutter Co., Dec. 14, 1925. This is to certify that E. A. Ferguson agrees to sell to Fred Koch, the following described property: One Reo chassis, year model 1916, as is. E. A. Ferguson, the sole legal owner of said Reo for several years past, agrees to give a clear title to said Reo, to Fred Koch, the buyer. The Reo chassis is sold as is, due to the fact that certain parts belonging to chassis are not attached thereto. E. A. Ferguson guarantees that a license for said Reo can be obtained. E. A. Ferguson, to the best of his knowledge, states that the motor of said Reo is in very good condition. [Here follow terms of sale, which are immaterial to this discussion.]
"[Signed] E. A. Ferguson.
"Fred Koch.
"Witness: J. Ponne."
The defendant failed to make the payments required by the agreement, and this suit followed.
Defendant by his answer alleged that the plaintiff made certain false and fraudulent representations to defendant, as to certain qualities of the truck. It is averred that the following representations were made: First, that the truck was a "Reo speed wagon"; second, that it was a 2½ -ton truck, and would carry that weight; and, third, that it had the same motor in it that the Reo Company was then putting in the new cars for the year 1925.
Defendant further alleged that these represented qualities were the inducements that caused him to enter into the agreement of purchase; that soon thereafter defendant found that the said representations so made to him by plaintiff were false and untrue, and thereupon he immediately offered to return the truck to the plaintiff. Plaintiff denied these allegations of fraud.
Upon a trial of the issues thus presented, the court found the allegations of defendant’s answer to be true, and gave judgment for the defendant.
Appellant contends that the decision of the lower court was erroneous for several reasons.
First. It is claimed that if the defendant, a man admittedly familiar with trucks generally, was given full and free opportunity to make an independent examination of the truck, and that if he did in fact make a full examination, and thereafter accepted the machine, he did so under the caveat emptor doctrine.
Secondly. Appellant contends that, as the machine was a "made-over" truck, reconstructed from an already used or secondhand car, it would have no guaranties or warranties by implication, and that, if the contract of sale did express certain warranties, these warranties must be taken as the only warranties attending the sale. In this connection it is further claimed that, as the written agreement had therein the words "as is," referring to the condition of the car when sold, it must be interpreted as meaning that the buyer takes the truck with all its faults and imperfections.
The questions presented on this appeal are not easy of solution, owing to the fact that, as stated in many decisions and text-books, the decided cases are not easily harmonized.
Taking the question as to whether the defendant, having made an examination and thereupon accepting delivery of the car, is now precluded from claiming that the machine was wanting in some particular as warranted, we believe that, if we are to harmonize the decisions, we must do so upon the theory that the trial court has a right to judge of the circumstances attending the sale and of the relative position and knowledge of the two parties to the agreement and as to whether the buyer was in fact misled. It is plain that an expert on secondhand automobiles cannot be misled into accepting delivery of an automobile from one who knows nothing about a car. In such case it can make no difference what the seller says as to qualities possessed by the machine. On the other hand, a purchaser without mechanical knowledge has a right to rely upon what a skilled mechanic tells him. The trial court in the case at bar having heard all the testimony on this point, found that the defendant herein was misled by plaintiff’s statements, notwithstanding the fact that defendant did make an independent investigation of the car. We cannot hold as a matter of law that, because defendant did make an independent investigation, he was not in some substantial measure misled by plaintiff’s false statements. We think the evidence is sufficient, if believed by the trial court, to indicate that he might have relied much more on the statements of plaintiff, as to the qualities of the automobile, than he did on his own examination.
In the late case of Mooney v. Cyriacks, 185 Cal. 70, 195 P. 922, it was held that a purchaser is not estopped from claiming that false representations were made, because such purchaser made an independent investigation. However, in that particular case it appeared that the plaintiff was a woman, knowing almost nothing of the general qualities of automobiles, and it further appeared that particular representations, as to qualities very important to her, were so presented to her that even had she been quite an expert as to such machines, she might have been easily misled. The automobile in the Mooney Case had been run at least 10,000 miles. The speedometer thereon was by the seller fraudulently set back so as to indicate that the machine had been driven only some 900 miles, which last-named distance was the mileage the seller represented the machine had been driven. In addition to this, it appeared that the top of the automobile had been skillfully patched by the seller in a manner as to make it appear that the top was new.
It is therefore plain that in the Mooney Case the purchaser was, by fraud, prevented from making a fair inspection. Williston on Sales, § 208, says:
"There is no reason in the nature of things why a buyer should not rely both on the seller’s statements and his own judgment."
The trial court, in the instant case, having determined that defendant was in fact misled, we will not disturb the decision because defendant did make his own examination of the automobile before the purchase.
We then come to the question as to whether or not the defendant herein should have been permitted to introduce any evidence as to fraudulent representations, under the circumstances attending the sale and as the same are affected by the written contract now before the court.
The automobile was not only what is termed a secondhand car, but, to use the language of some of the witnesses, it was "made over" into a truck from an old 1916 Reo touring car. We cannot hold that it had any implied warranties under the circumstances. If warranties accompanied its transfer, they must be held to be express warranties of the seller. Of express warranties only does defendant complain.
The written contract did not attempt to name it as a "truck"; it was described as a "Reo chassis, year model 1916, as is." There were certain express warranties in the sale and purchase agreement. That plaintiff would give a clear title, and would guarantee that a license could be obtained, were warranties clearly expressed. As to the quality of the motor the agreement says: The seller "to the best of his knowledge states that the motor of said Reo is in very good condition." No other warranties are expressed.
The agreement, however, does say that the truck is sold "as is." Just what these words imply has not been fully treated in the reports. We can find but one use of the expression in the reported cases. In Schwartz v. Kohn (Sup.) 155 N.Y.S. 547, it is used, but, as used there, no light is thrown on the real meaning of the expression. According to the use of the word, particularly in catalogues of secondhand books, furniture, or such like articles, its use implies that the buyer takes a chance in making the purchase. It seems to imply the thought that the buyer is taking delivery of goods in some way defective, and upon the express condition that he must trust to his own examination. The very words "as is," taking this contract as a whole, would cause a person to know that the seller meant to say to the buyer, "You look the article over, and, if you buy it, you do so at your risk." It means much the same as saying, "If you buy you take the article with all its faults." We believe that, as a matter of law, under the facts as this record shows them to be, the defendant must be held to have accepted this truck, without the guaranties of which he complains accompanying the transfer.
He in no way pretends that he was misled into signing the agreement, except as to the prior fraudulent statements. His signature to the agreement was not obtained by fraud or artifice. All previous negotiations are presumed embodied in the writings. Section 1625, Civ. Code.
We believe the language used by the court in Yuba Manufacturing Co. v. Stone, 39 Cal.App., at page 447, 179 P. 421, clearly expresses the true rule that should be our guide. The decision just cited says:
"Manifestly the court, as far as possible, should protect an innocent party against the fraud of one seeking to take an unconscionable advantage, but in this class of cases, when the parties have deliberately reduced their contract to writing, and have undertaken to set forth the character of the contrivance which is sold, and there is no mistake or fraud connected with the execution of said instrument, it is reasonable and in accordance with the law to hold that the contract shall not be avoided by reason of some false representation as to the quality of the machine, which representation the vendee has seen fit to completely ignore in the written instrument. It is true, of course, that a defrauded party cannot by the simple ‘device of a written instrument’ be deprived of the right to prove the fraud, but it is equally true that he cannot be permitted to nullify the rule in relation to written instruments by the specious claim that he was deceived by certain oral representations."
The judgment of the lower court is reversed.
We concur: HART, Acting P. J.; PLUMMER, J.