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Stephens-Franklin Motors, Inc. v. Lambros

Supreme Court of Arizona

March 5, 1951

STEPHENS-FRANKLIN MOTORS, Inc.
v.
LAMBROS

Judgment affirmed.

Frank W. Beer and Hess Seaman, of Phoenix, for appellant.

Emmet M. Barry and W. T. Choisser, of Phoenix, for appellee.

De Concini, Justice. Udall, C. J., and Stanford, and Phelps, JJ., concur. La Prade, Justice (specially concurring).

OPINION

De Concini, Justice.

[71 Ariz. 390] This is an action under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq.

Plaintiff Evelyn Lambros alleged in the court below that on or about August 23, 1946, she purchased from the defendant Stephens-Franklin Motors, Inc., a corporation, a used 1942 DeSoto sedan automobile for the sum of $ 1,673.53; that according to the existing Office of Price Administration regulations she was overcharged and damaged in the amount of $ 384.31 because the

Page 268

sale was not of a warranted used car as required by the regulations. Plaintiff prayed judgment for treble damages allowable under the act, for $ 250 attorneys' fees and costs.

Defendant motor company in its answer admitted the sale and the sum paid by plaintiff, and admitted an overcharge of $ 49.98 alleged to be an inadvertent mistake made in good faith and for which it was willing to confess judgment. Judgment was granted in favor of the plaintiff in the sum of $ 346.11 after crediting charges for certain repairs which were necessary at the time she bought the car plus $ 250 attorneys' fees and costs. From said judgment defendant appealed.

The case was tried before the court without a jury. The following facts were developed. The plaintiff purchased, paid for and took possession of a 1942 DeSoto Sedan on August 23, 1946. Plaintiff signed a purchase order form which was itemized as follows:

Base Price

1,236.00

Radio

26.50

Heater

8.83

Fluid Drive

39.74

Warranty

327.77

Sales Tax

32.78

Title

1.75

Total

1,673.53

The order was apparently written up by defendant's salesman, a Mr. Bacon since that name printed in pencil appears thereon. The spaces marked "Warranted ( )" [71 Ariz. 391] and "Unwarranted ( )" were left unchecked on the purchase order form. There were a few items to be repaired and were marked on the order as follows: "Additional Information: Tune motor, fix hood, repair gear shift."

The plaintiff left the car with the defendant and returned at 5 p.m. that day to get the car when the repair items above listed were supposed to be completed. She drove to her home and when she entered the driveway the rear wheels locked. She phoned defendant and it sent a man out to jack up the car and free the wheels. The next day she took the car to defendant's repair shop and had some minor adjustments made for which she paid $ 2.40. Three days later while still having trouble with the gear shift she again took the car to defendant's repair shop. The garage or service manager estimated the necessary repairs to cost in excess of $ 200 and when he discovered that the car had just been purchased from defendant, referred her to the sales department for an adjustment. The sales manager agreed to have the car repaired at some cost to plaintiff to which she objected. The work was nevertheless done and she was charged and paid $ 7.83, which was 50% of the regular cost according to the terms of the OPA warranty set forth in the regulations. Upon leaving defendant's garage she immediately drove to Hinkle's garage, a party in whom she had confidence, where she had her car checked. Repairs were necessary to the extent of $ 76.73. ...


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