Opinion
No. 40859.
October 6, 1958.
1. Sales — motor vehicles — conditional sales contract — warranty — evidence — instructions.
In action by seller against buyer of used automobile under conditional sales contract to recover balance due on purchase price, wherein buyer pleaded alleged guarantee, and wherein evidence was introduced without objection concerning alleged guarantee and that automobile was not as guaranteed, Trial Court did not err in giving an instruction which submitted issue whether seller had guaranteed the condition of the automobile, though conditional sales contract contained provision that no agreement, representation, or warranty shall be binding on the seller unless expressly contained in the contract, and though the alleged guarantee was not contained in the contract.
2. Appeal — evidence — incompetent evidence admitted without objection could not be expunged from record on appeal.
Where there was no complaint at time of trial concerning the admission of evidence, which was allegedly inadmissible, such evidence could not be expunged from record on appeal.
3. Warranty — motor vehicles — vendor and purchaser — evidence — sustained verdict for purchaser.
In action by seller against buyer of used automobile under conditional sales contract to recover balance due on purchase price, wherein buyer contended that he was not liable for balance due because automobile was not in condition represented and guaranteed by seller, evidence sustained verdict for buyer.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, JR., J.
Sims Sims, Columbus, for appellant.
I. The Trial Court erred in granting "Instruction No. 1 for the defendant, said instruction reading as follows: The Court charges the jury for the defendant that if you believe from a preponderance of the evidence in this case that the plaintiff warranted said 1953 Nash automobile to be in A-1 condition and that relying upon this warranty, if any, defendant agreed to purchase and did purchase said automobile, and that immediately after said transaction the automobile was not in an A-1 condition as warranted and represented to defendant, and if you further believe that the defendant did not damage this car by his negligence, then plaintiff has breached the warranty in this case, and it will be your sworn duty to award the defendant on his counterclaim the difference in the value of the car as warranted at the time of the transaction and the actual value as it was at the time of the transaction, and the form of your verdict may be in this event: We, the jury find for the counterclaimant and fix the amount of his damages at $ ____; and write your verdict on a separate piece of payer." This instruction as granted by the Court on behalf of the appellee was erroneous and reversible error, in as much as there was no evidence in the record that said automobile had been warranted to the appellee. Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491; Taylor v. C.I.T. Corp., 187 Miss. 581, 191 So. 60.
II. The Court erred in overruling the appellant's motion for a new trial, and would show that the evidence in this case is overwhelmingly in favor of the appellant and that the appellee owed the amount as sued for in said cause. Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747.
Carter Van Every, Columbus, for appellee.
I. The testimony with reference to the warranty of the automobile was introduced by the appellee in the Lower Court and no objection was made to the introduction of this evidence.
II. Generally, relevant evidence received without objection may be considered as proper evidence and be accorded its natural probative effect, though it would have been excluded if objection had been made. Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457; Phillips v. Lane, 4 How. (5 Miss.), 122; W.L. Holcomb, Inc. v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281; Wilson v. Owens, 1 How. (2 Miss.) 126; Wingo-Ellett Crump Shoe Co. v. Naaman, 175 Miss. 468, 167 So. 634.
III. The evidence in the Lower Court was overwhelmingly in appellee's favor.
Robert T. Fletcher, doing business as Fletcher Motor Company, obtained in the justice of the peace court a judgment against James Hutcherson for the sum of $192.18, the alleged balance due on the purchase price of an automobile. Hutcherson appealed to the circuit court where he filed an answer in which he alleged that Fletcher had guaranteed the car to be in first class condition, in good running order, with the motor in A-1 condition, and that it had been operated only 29,335 miles. He alleged the truth to be that the car was not in the condition represented, but that it was in bad condition, that it had been driven in excess of 83,000 miles, and that the plaintiff was entitled to recover nothing.
The evidence was in dispute as to whether the plaintiff guaranteed the car. The jury found a verdict for the defendant, and Fletcher has appealed here.
(Hn 1) The appellant now complains that the Court erred in giving an instruction for the appellee which submitted the issue as to whether the appellant had guaranteed the condition of the car. He says that the conditional sales contract contained a provision that "no agreement, representation or warranty shall be binding on the holder unless expressly contained herein", and that since the alleged guaranty was not contained in the sales contract, the giving of the instruction was error because there was no evidence upon which to base it.
But the appellee had pled the guaranty. Besides Fletcher called Hutcherson as an adverse witness for the purpose of cross examination and brought out in detail the full scope of the guaranty. Moreover, after he rested his case, Hutcherson then took the stand in his own behalf and elaborated, without objection, his evidence as to the defective condition of the automobile, and testified that he relied on the representations of the admitted agent of the appellant.
(Hn 2) The present contention that this evidence was inadmissible is beside the point. There was no complaint about it at the time of the trial, and it can not now be expunged from the record. See Wingo-Ellett Crump Shoe Co. v. Naaman, 175 Miss. 468, 167 So. 634; Citizens Bank of Hattiesburg v. Miller, 194 Miss. 557, 11 So.2d 457; Trewolla v. Garrett, 200 Miss. 563, 27 So.2d 887; Pepper v. State, 200 Miss. 891, 27 So.2d 842; Van Norman v. Van Norman, 210 Miss. 105, 48 So.2d 633; Holcomb v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281; Cannady's Used Cars, etc. v. Dowling, 221 Miss. 293, 72 So.2d 696; and American National Life Ins. Co. v. Craft, 222 Miss. 847, 77 So.2d 679.
(Hn 3) Since the evidence, admitted without objection, fully warranted the jury's finding, there is no merit in the appellant's further contention that the verdict was contrary to the great weight of the evidence.
It follows that the cause must be, and is, affirmed.
Affirmed.
McGehee, C.J., and Kyle, Holmes and Arrington, JJ., concur.