Coleman Oldsmobile, Inc. v. Newman & Associates, Inc.

477 So. 2d 1155, 1985 La. App. LEXIS 9949
CourtLouisiana Court of Appeal
DecidedOctober 8, 1985
Docket84 CA 0737
StatusPublished
Cited by7 cases

This text of 477 So. 2d 1155 (Coleman Oldsmobile, Inc. v. Newman & Associates, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coleman Oldsmobile, Inc. v. Newman & Associates, Inc., 477 So. 2d 1155, 1985 La. App. LEXIS 9949 (La. Ct. App. 1985).

Opinion

477 So.2d 1155 (1985)

COLEMAN OLDSMOBILE, INC.
v.
NEWMAN AND ASSOCIATES, INC. et al.

No. 84 CA 0737.

Court of Appeal of Louisiana, First Circuit.

October 8, 1985.
Rehearing Denied November 21, 1985.

*1157 Robert L. Kleinpeter, Louis M. Phillips, Richard Creed, Jr., Baton Rouge, for plaintiff-appellee.

W. Hugh Sibley, Clifton T. Speed, Greensburg, for defendants-appellants.

Before LOTTINGER, COLE and CRAIN, JJ.

CRAIN, Judge.

The trial court rendered judgment in favor of Coleman Oldsmobile, Inc. (Coleman) in the sum of $15,000 representing the unpaid purchase price of a 1979 Winnebago motor home. Judgment was further rendered against E.C. Newman, plaintiff in reconvention, dismissing an action in redhibition. From this latter judgment plaintiff in reconvention appeals.

FACTS

On May 29, 1980, Mr. E.C. Newman agreed to purchase a new 1979 model Winnebago motor home from Coleman. The agreed upon price was $17,000. On May 29, 1980, Newman made a $2,000 downpayment and on June 5, 1980, he tendered the balance due by check written in the amount of $15,000, dated June 5, 1980. The motor home had been transported by Winnebago to Coleman on November 17,1978, and was accepted by Coleman on November 21, 1978.

On June 7, 1980, Mr. and Mrs. Newman and two of their children drove their new motor home to Mobile, Alabama for a weekend excursion. Its maiden voyage was, unfortunately, plagued with difficulties. The air conditioning unit failed to operate properly, at times blowing only hot air. The entire electrical system went out several times. While traveling at night at 55 miles per hour the headlights suddenly went out, forcing the driver to maneuver the vehicle to the shoulder of the Interstate in complete darkness. While driving with the cruise control in operation the accelerator automatically floored, causing the vehicle to reach a speed of 90 miles per hour. Newman parked the motor home overnight (Saturday night) in Biloxi. On Sunday morning the vehicle failed to start and Newman had to hire two mechanics to start it. Upon arrival at his home that afternoon Newman stopped the vehicle in front of his house to unload the luggage and it would not start. It had to be towed to its parking spot.

Newman immediately called a Coleman representative who advised him to bring the vehicle in for servicing. Newman told him that Coleman could pick the vehicle up but he could not bring it in because it would not start. Several telephone conversations between Newman and Coleman employees took place during the following weeks concerning the repair of the motor home. In the meantime, on approximately June, 9,1980, Newman stopped payment on the $15,000 check. Finally, on August 13, 1980, Coleman employees transported the vehicle by wrecker from Newman's home to Community Motors in Hammond in order to have the vehicle repaired at an authorized Chrysler repair shop. The water pump pulley was found to be bent, which supposedly accounted for the problems encountered *1158 with broken alternator belts which in turn caused electrical problems. The pulley was straightened but not replaced because the part was not then currently in stock. The distributor which had supposedly caused the starting problem was allegedly repaired, and the blowing of heated air by the air conditioner was allegedly corrected.

Newman then picked up the vehicle from Community Motors to take it home. He stopped along the way and again the vehicle would not restart. It had to be towed to his home where it remained until approximately one week before trial. At that time by court order, the service manager of Community Motors and a Chrysler Corporation representative were authorized to check out the motor home to determine whether it was then in working condition. A new battery was installed in order to crank it. The motor home was driven a few miles when it began to overheat. It was then towed to Community Motors in Hammond. It was noted that the alternator and water pump belts were missing and the water pump pulley was still bent. In addition, neither the air conditioner nor the cruise control was found to be in operating order. The vehicle was then driven back to Newman's home where the new battery was removed and the vehicle left.

TRIAL COURT

The trial court held that rescission of the sale would not be allowed because Newman failed to give Coleman the opportunity to correct the alleged redhibitory defects. The court stated that Newman would be allowed to present evidence relative to the cost of repairing the motor home for purposes of reducing the purchase price, but Newman refused to do so, therefore, his reconventional demand was dismissed.

Newman appeals alleging as error (1) the trial court's failure to rescind the sale, (2) the trial court's failure to award attorney's fees and damages, and (3) the trial court's failure to find that Coleman misrepresented the motor home as new when it was actually a used motor home.

REDHIBITION

In the first assignment of error, appellant alleges that he adequately proved that redhibitory vices existed at the time of sale making the motor home unfit for its intended use or its use so inconvenient that Newman would not have purchased the vehicle had he known of the defects at the time of the sale. He argues that Coleman had knowledge of the defects at the time of the sale and was not in good faith, consequently, Newman was not required to tender the vehicle for repair prior to instituting a redhibitory action. Newman also contends that Coleman was given adequate opportunity to repair the vehicle prior to July 16, 1980, and refused to do so.

La.C.C. art. 2520 defines redhibition as "the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice." To be successful in a redhibitory action, the buyer must prove that the redhibitory vices existed at the time of the sale. La.C.C. art. 2530. A seller in good faith is one having no actual or constructive knowledge of the redhibitory defects. Should the good faith seller fail to repair or remedy the defect, or be unable to do so, he must restore the purchase price to the buyer as well as reimburse the buyer for reasonable expenses of the sale. La.C.C. art. 2531. In a continuing line of jurisprudence this court has held that the seller should be given the opportunity to repair the defects before the purchaser may commence an action to rescind the sale. Welch v. Community Motors, Inc., 422 So.2d 1196 (La. App. 1st Cir.1982), writ denied, 426 So.2d 181 (La.1983); Evangeline Medical & X-Ray Distributors Corp. v. Coleman Oldsmobile, Inc., 402 So.2d 208 (La.App. 1st Cir.1981); Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1st Cir. 1976).

In its findings of fact the trial court stated that appellant failed to prove that *1159 the seller was given the opportunity to repair the defects. Our review of the facts convinces us this finding was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The record reflects Newman experienced numerous difficulties with the vehicle on its first and only outing. Immediately upon arrival at his home after the weekend outing, Newman telephoned Coleman representatives informing them of the problems encountered with the vehicle. They advised Newman the vehicle should be brought in for repairs.

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Cite This Page — Counsel Stack

Bluebook (online)
477 So. 2d 1155, 1985 La. App. LEXIS 9949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-oldsmobile-inc-v-newman-associates-inc-lactapp-1985.