Dieball v. Bill Hanna Ford Co.

287 So. 2d 595, 1973 La. App. LEXIS 5880
CourtLouisiana Court of Appeal
DecidedNovember 13, 1973
DocketNo. 12178
StatusPublished
Cited by1 cases

This text of 287 So. 2d 595 (Dieball v. Bill Hanna Ford Co.) 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
Dieball v. Bill Hanna Ford Co., 287 So. 2d 595, 1973 La. App. LEXIS 5880 (La. Ct. App. 1973).

Opinion

PRICE, Judge.

E. A. Dieball brought this action to rescind his purchase of a Ford Pickup truck from Bill Hanna Ford, Inc., and to recover judgment for various items of expense and damage incurred by him in connection with the transaction. Dieball also seeks reasonable attorney’s fees under the provisions of La.C.C. article 2545 et seq., relating to the redhibitory action.

As a basis for his suit, Dieball alleges he contracted with Hanna through its salesman, Ralph Festavan, for the purchase of a 1971 ton F°r(i Sport Custom F-250 Camper Special with sufficient weight bearing capacity to accommodate a ten and one-half foot recreational camper; however, the truck delivered was inadequate for this purpose.

Plaintiff named as defendants Hanna, Festavan and Ford Motor Company. Prior to trial of the case plaintiff dismissed Ford as a defendant in his action. Hanna and Festavan answered plaintiff’s demands, denying the allegations that they had not fulfilled their contract with plaintiff by a delivery of a truck meeting the specifications requested by plaintiff in his purchase order, and that the truck was not defective in any respect. These defendants also filed a third party demand against the manufacturer, Ford Motor Company, for judgment over and against Ford should it be found that the truck delivered to plaintiff contained any redhibitory vice or defect.

After a trial on the merits the district court rendered judgment for plaintiff and against defendant, Hanna, rescinding the sale and ordering Hanna to refund the purchase price of $4,404, upon the return of the truck. All other claims of plaintiff were rejected and the third party demands of Hanna against Ford were rejected.

Defendant, Hanna, is the sole appellant from this judgment. Plaintiff has not appealed from that portion of the judgment rejecting his claims for damages or attorney’s fees, nor has he answered Hanna’s appeal to request any modification of the trial court’s judgment.

The operative facts giving rise to this litigation as found by us from the transcript of testimony and the evidence contained in the record are substantially as follows:

Plaintiff contacted Ralph Festavan, a salesman at Bill Hanna Ford, sometime [597]*597around August 1, 1970, and advised Festa-van he desired to purchase a F-250 Ford Pickup to carry a ten and one-half foot camper he intended to buy. Festavan did not have this type of truck in stock and was unable to procure one from another dealer. He advised plaintiff a 1971 model truck of this type was on order and he would call plaintiff when it arrived.

On August 29, 1970, plaintiff contracted to buy a ten and one-half foot “Open Road” camper, described as a “cab over” style and fully “self contained.” Around the middle of September plaintiff was notified Hanna had received the F-2S0 truck. On this same date plaintiff and his wife were shown the truck by another salesman as Festavan was out of the office. The next day plaintiff, accompanied by his wife, met with Festavan, discussed the truck and reached an agreement on the price and the sale was consummated at that time. A purchase order was prepared by Hanna’s personnel reflecting the specifications on the truck and the information relating to sales price, taxes, etc. This agreement was signed by plaintiff.

The truck delivered to' plaintiff equipped with 1,950 pound rear springs and 8 ply rear tires, had an actual gross vehicle weight capacity of 6,900 pounds.

After installation of the camper previously purchased by plaintiff on the pickup truck, it was apparent the truck was overloaded because of the weight of the camper. The inadequacy of the truck to carry this particular camper is undisputed.

Plaintiff contends his sole motive in purchasing the pickup truck was to provide himself with a recreational vehicle and that Hanna’s sales representative was fully informed of his intended use for the truck and of the size and type of camper he intended to install on the truck. As he was not furnished a vehicle with this capability, plaintiff contends the purchase contract should be rescinded and the purchase price refunded.

Hanna, to the contrary, contends plaintiff had determined for himself the particular type and weight bearing specifications of the truck he desired prior to contacting Festavan, and that a truck meeting plaintiff’s requirements was furnished. Hanna further contends the vehicle sold is identical in quality and equipment to the purchase order signed by plaintiff on the date of the sale. Defendants, although admitting the truck is not adequate for the camper owned by plaintiff, contend the dilemma results from plaintiff’s having failed to obtain and compare the weight of the camper he had purchased to the gross vehicle weight of the truck he selected.

The trial judge in his reasons for judgment concluded that Festavan knew the use plaintiff intended for the truck and the size and type of camper plaintiff intended to install on the truck. He further found Festavan believed at the time of the sale that this particular truck was sufficient to carry any ten and one-half foot self-contained camper and so advised plaintiff. Therefore, the trial judge concluded there was mutual error in the principal cause of the contract and ordered its rescission.

We find no manifest error in the findings of fact of the trial court and are of the opinion the court has ruled in accordance with the applicable law and jurisprudence.

In the case of Ouachita Air Conditioning, Inc. v. C. G. Pierce, 270 So.2d 595 (La.App. 1st Cir. 1971), this court discussed the civil code articles relating to error in the formation of a contract which is sufficient to invalidate the agreement as follows:

“LSA-Civil Code Article 2439 provides that three circumstances must concur for the perfection of a contract of sale, namely, the thing sold, the price and the consent. Article 2456 provides that the sale is considered to be perfect as soon as there exists an agreement for the object and for the price thereof. In this instance the contract of sale was [598]*598never, perfected because • there was no meeting of the minds or agreement as to the thing or object. Otherwise stated, there was error of fact as to the thing or object which vitiated consent and rendered the contract voidable.
“LSA-Civil Code Articles 1819 and 1820 declare that requisite consent to a contract is lacking when there exists an error of fact. To vitiate a contract, an error of fact must pertain to the principal cause for making the agreement and must pertain to either the motive for making the contract, the person with whom the contract is made, or to the subject matter of the contract itself. LSA-Civil Code Article 1823. No error in the motive can invalidate a contract unless the other party was apprised that it was the principal cause of the agreement or unless from the nature of the transaction' it must be presumed that he knew it. LSA-Civil Code Article 1826. Error as to the thing invalidates a contract only if it bears upon the substance or some substantial quality of the thing that constitutes the object of the agreement. LSA-Civil Code Article 1842. There is error as to the substance when the object is of a totally different nature from that which is intended. LSA-Civil Code Article 1843. Error as to the substantial quality of an object refers to that quality which gives the object its greatest value. LSA-Civil Code Article 1844.

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287 So. 2d 595, 1973 La. App. LEXIS 5880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dieball-v-bill-hanna-ford-co-lactapp-1973.