LOUIS P. LUTFY, Appellant,
R.D. ROPER & SONS MOTOR COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed and remanded.
Mr. Wm. P. Lutfy and Messers. Cox and Cox, for Appellant.
Messrs. Baker & Whitney, Mr. Lawrence L. Howe and Mr. Harold E. Whitney, for Appellee.
[57 Ariz. 498] McALISTER, J.
Appellant, Louis P. Lutfy, filed a complaint against R.D. Roper & Sons Motor Company, a corporation, setting up two causes of action. In the first he sought damages in the sum of $ 1,000 for the sale to him of a Cord automobile, 1936 model, upon the false representation that it was a 1937 model, and, in the second, $ 500 as punitive damages for its wanton, fraudulent and malicious misrepresentation made for the purpose of defrauding him.
Appellant owned a 1936 automobile which he decided in 1937 to trade in on a Cord sedan. In Phoenix the Cord was handled by appellee and its place of business was at 541 West Adams street, so in March of that year appellant called there and asked to see its new model Cords and several different ones were shown him. On March 15, after four or five interviews with appellee's agents, the deal was consummated and a contract of conditional sale executed by the parties. By its terms appellant agreed to pay for the Cord sedan $ 2,410 as follows: $ 1,110 by turning in his Oldsmobile, $ 800 in cash and $ 500 in eleven monthly installments of $ 47.40 each. The contract did not describe the model of the car by specifying the year of its manufacture but referred to it as "Model 810." The yearly models of the Cord were indicated by numbers, the particular year of manufacture not appearing on the car at all. For instance, model 810 meant a 1936 model, and model 812 a 1937 model.
The contract of sale contained, among others, the following provision:
"It is understood and agreed that there is no representation or warranty that the 'year model' of said property, as hereinbefore stated, correctly states the year in which said property was manufactured, but is merely used by the parties hereto for convenience in describing it. It is further understood and agreed that this contract contains the complete contract between [57 Ariz. 499] the parties hereto, and that there are no representations or warranties, express or implied, which are not herein contained and Purchaser agrees that he has made an independent investigation of the property and has relied solely upon his own investigation with reference thereto in entering into this contract, and has placed no reliance and acted upon no representations or warranties upon the part of the Seller."
It appears that after appellant had been driving the car about four weeks he was told by a garageman who was servicing it that the number 810 meant a 1936 model. He immediately wrote the manufacturer at Auburn, Indiana, describing the car and asked if an 810 Cord was a 1936 or a 1937 model and the company replied that all 810 Cords were 1936 models and all 812 Cords 1937 models. A copy of this reply was sent to appellee and a few days later appellant, accompanied by his brother and a friend, called at appellee's place of business and demanded that it reimburse him for the damages he had sustained as a result of selling him a 1936 instead of a 1937 model. Appellee refused to comply, denying that it had made any such representation, and thereafter this action was filed.
Appellant testified that on his first visit to appellee's place of business he asked Mr. Miner, the agent who showed him the Cords, if they were 1937 models and that the latter assured him they were, calling his attention at the time to a picture on the wall which contained in large letters "1937 Cord automobile" and, while pointing out to him various identical features, requested him to compare the car on the floor with the one on the chart. He testified further that at the time of the execution of the contract the agent told him that the number 810 meant a 1937 model and that he accepted this as true the same as he had the other statements that the car was a 1937 mode. The agent testified, upon the other hand, that [57 Ariz. 500] nothing was said about the year of the model at the first interview, though he claimed that in a later conversation he told appellant the car was a 1936 model but that there was no difference between the 1936 and the 1937. Most of the testimony was directed toward the vital question whether the Cord purchased by appellant was represented to him by appellee as a 1937 model,
and it is not necessary to say more of the evidence pertaining to that phase of the case than that it is sufficient to support a finding either way. And in view of this, appellee contends that under our unvarying rule the jury's finding in its favor thereon renders an affirmance of the judgment necessary. This would undoubtedly be true if the record were such that no other conclusion could be deduced from the finding in favor of appellee than that the jury believed that its agent did not represent to appellant that the car was a 1937 model, but ...