Cornelious v. Bailey Lincoln-Mercury, Inc.

566 So. 2d 85, 1990 La. App. LEXIS 1212, 1990 WL 62069
CourtLouisiana Court of Appeal
DecidedMay 15, 1990
DocketNo. 89-CA-1431
StatusPublished
Cited by1 cases

This text of 566 So. 2d 85 (Cornelious v. Bailey Lincoln-Mercury, 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
Cornelious v. Bailey Lincoln-Mercury, Inc., 566 So. 2d 85, 1990 La. App. LEXIS 1212, 1990 WL 62069 (La. Ct. App. 1990).

Opinion

WILLIAMS, Judge.

This is a redhibition suit seeking rescission of the sale of á used automobile which contained alleged redhibitory defects. Plaintiffs, Linda C. and Eddie J. Cornelious, filed suit against defendant, Bailey Lincoln-Mereury, Inc., in Civil District Court for the Parish of Orleans, and the case was referred to a Commissioner for trial. The Commissioner held that there was insufficient evidence to sustain an action in redhibition and ruled in favor of defendant. The district court accepted the Commissioner’s findings and recommendation, and the judgment was made final.

Plaintiffs appeal, alleging generally that 1) the district court erred in accepting the recommendation of the Commissioner and dismissing their claim with prejudice; and 2) the trial court erred in disallowing evidence as to general damages.

After review of the record and applicable law, we conclude that the trial court correctly denied plaintiffs’ claim for rescission of the sale because plaintiffs failed to prove that the automobile had a defect which rendered it absolutely useless or its use so inconvenient and imperfect that it must be supposed that plaintiffs would not have purchased it had they known of the vice. Next, we hold that the trial court erred in failing to award a reduction in the purchase price of the vehicle, as the record shows that the defect in the vehicle diminished its value and resulted in a partial [87]*87failure of consideration. Accordingly, we reverse in part the judgment of the trial court.

On May 4, 1985, plaintiffs purchased from defendant a 1984 Mazda 626 for approximately $11,768.50 plus interest, a total price of $15,454.56. The car was a “demo” model with 10,580 miles on the odometer. There is no evidence in the record to show that plaintiffs declared any desire to purchase a “new” vehicle.

On May 13, 1985, nine days after the purchase, Mr. Cornelious returned the car to Bailey to be serviced for problems with the front end alignment, rotation and balancing of the wheels, a broken power antenna, and an oil and transmission fluid change. In June, 1985, Mr. Cornelious again returned the car to Bailey, complaining that he would lose control of the car when he hit a bump in the road. On July 10, 1985, the car was again brought in for alignment. On July 29, 1985, the vehicle’s front end was repaired. In September, 1985, Bailey replaced and balanced all four tires free of charge.

Within months of the purchase, plaintiffs drove the car to South Carolina, where the front end “collapsed.” A dealer in South Carolina repaired the car so that plaintiffs could return home. Upon their return to New Orleans, plaintiffs brought the car back to Bailey for repairs. Mr. Cornelious testified that the car was never properly repaired.

Willie Thomas, an expert in engine, transmission and rear end repair, testified for plaintiffs. He stated that he examined the car in 1987 and determined from the condition of the frame that the car had at some time been totaled. The Commissioner found that no proof was offered to establish that the condition observed by Thomas in 1987 existed at the time of sale in 1985. However, plaintiffs introduced into evidence numerous documents, including a Bailey repair invoice dated February 13, 1984 (fifteen months before the sale) showing numerous repairs to the car with an estimated value of $6,285.97 (plus $565.74 in tax). The invoice shows repairs to the hood, fender, hinges, molding and frame, among other things.

Harry Lange, the salesman who sold the car to plaintiffs, testified for defendant. He stated that he never represented to plaintiffs that the car had never been wrecked and in fact was unaware of any previous accident to the car at the time of sale.

Gerald D. Smith, an independent automobile appraiser, also testified for the defendant. Mr. Smith examined the automobile on March 14, 1986 (ten months after sale). At that time, the car had 33,487 miles on it. He observed “very fresh damage” to the “front valance panel and the engine slash shield,” part of the undercarriage of the car. He testified that there was evidence that the car had been repaired previously, but could not determine how extensive the damage had been except to note that the frame had been bent. He testified that the car performed flawlessly in a road test, with the exception of a slight pull to the right. Smith stated that the car should continue to perform well as long as it is properly cared for.

At the beginning of trial, the parties stipulated that at the time of trial in June, 1988, the car had in excess of 93,000 miles on the odometer.

Redhibition and Reduction

A purchaser is entitled to rescission of the sale if a defect in the thing sold renders it absolutely useless or its use so inconvenient and imperfect that an informed buyer would not have purchased it. LSA-C.C. art. 2520. In a suit for redhibition, the purchaser must prove that at the time of sale the thing contained a vice or defect which was not apparent by ordinary inspection and which rendered the thing unfit for its intended use or its use so inconvenient or imperfect that it must be supposed that the buyer would not have purchased the thing had he known of the vice or defect. Millspaw v. Knight, 430 So.2d 1207, 1208 (La.App. 1st Cir.1983); Washington v. Morein Motor Company, Inc., 488 So.2d 325, 327 (La.App. 3d Cir.1986); Jofforion v. Leglue Buick, Inc., 399 So.2d 762 (La.App. 3d Cir.1981).

[88]*88A plaintiff may also recover in red-hibition where “(a) declaration [is] made in good faith by the seller, that the thing sold has some quality which it is found not to have, ... if this quality was the principal motive for making the purchase.” LSA-C.C. art. 2529. The underlying theory of this article is not the existence of a defect, but rather, that a contract may be rescinded based on error, fraud or duress which vitiates consent at the contract's inception. Boteler v. Taquino, 517 So.2d 377 (La.App. 5th Cir.1987).

Absent an express waiver, the warranty against redhibitory defects applies also to used automobiles, see Guidry v. St. John Auto Exchange, 379 So.2d 878, 881 (La.App. 4th Cir.1980); Guillory v. Morein Motor Company, Inc., 322 So.2d 375, 378 (La.App. 3d Cir.1975), modified to exclude the kind of repairs one might reasonably expect in buying a used car, see Hellman v. Comeaux, 353 So.2d 407, 409 (La.App. 4th Cir.1977). Cf. Dunn v. Pauratore, 387 So.2d 1227, 1231 (La.App. 1st Cir.1980).

Pursuant to LSA-C.C. art. 2543, the judge in a redhibitory suit may award a reduction of the purchase price rather than rescission of the sale. Although by definition a redhibitory defect is one that would entitle the purchaser to a rescission of the sale, the term is often used in reference to a defect which merely warrants a reduction of the price. Millspaw v. Knight, 430 So.2d at 1208 n. 4. An action in quanti minoris is governed by the same rules as suits in redhibition. LSA-C.C. art. 2544. Where the evidence establishes only a partial failure of consideration and the court finds that the defect in the thing has merely diminished its value, a reduction may be granted. Cernigliaro v. Marquis Marine, Inc., 381 So.2d 886, 888 (La.App. 2d Cir.1980), citing Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir.1975).

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566 So. 2d 85, 1990 La. App. LEXIS 1212, 1990 WL 62069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cornelious-v-bailey-lincoln-mercury-inc-lactapp-1990.