This suit was filed by Plaintiff for the rescission of a sale, made on September 25, 1965, of a 1965 Buick 225 Electra Convertible, against Bernie Dumas Buick Company,
The District Court rendered judgment for Plaintiff against Bernie Dumas only, rescinding the sale and awarding Plaintiff $4,485.50, less a credit of $1,000.00 for the use of the vehicle, and $17.82 for costs of repair, with legal interest. The Court held the vehicle was completely defective, and nullified the sale on the basis of fraud as contended by Plaintiff; and dismissed the suit as to General Motors.
Both Bernie Dumas and Plaintiff have appealed. Plaintiff contends the District Judge was in error in allowing a credit for the use of the automobile, and for refusing to award attorney's fees, interest and insurance on the vehicle. In this Court, Plaintiff abandoned his appeal from the judgment dismissing General Motors.
Bernie Dumas contends Plaintiff waived his implied legal warranty, accepting instead the 24-month manufacturer's warranty. We pretermit this question because we find, as did the Trial Judge, that the Defendant was in bad faith. Plaintiff, of course, did not waive his warranty against a fraudulent sale.
The record reveals there were numerous defects and malfunctions of the automobile purchased by Plaintiff, among which were: The breakdown of the electrical system, which occurred about 100 times; failure of the brakes; a defective convertible top, which could not be lowered and which leaked; a paint job which early showed evidence of corrosion; faulty heater, air conditioning unit and radio, use of any of which would make the entire automobile inoperative; a defective right rear tire and axle, which caused a blowout on the highway; and a defective generator, heater and temperature indicator. Plaintiff testified he brought his car into the repair shop for servicing approximately 35 times during a 12-month period, to no avail.
It is undisputed that the automobile purchased by Plaintiff was parked on the Bernie Dumas lot on Chef Menteur Highway during Hurricane Betsy on September 9, 1965, in an area where widespread flooding occurred. Bernie Dumas made insurance claims for two cars on the same lot which were damaged by salt water, leading the Trial Judge to find as a fact, as do we, that Bernie Dumas had actual knowledge that there was a possibility that the automobile sold to Plaintiff was exposed to salt water damage. It was admitted by the Secretary-Treasurer and Business Manager of Bernie Dumas that, although insurance was collected for wind and water damage on most of the vehicles on the lot, they were all sold to the general public as new vehicles.
Moreover, we conclude, as did the Trial Judge, that the specific vehicle sold Plaintiff was exposed to salt water, although it was represented as new and undamaged. This fact was testified to by Roy Schmidt, a qualified expert in the field of automechanics, as well as a merchandising parts analyst, trained by General Motors Training School, who inspected the vehicle sold Plaintiff on four occasions. He testified:
Regarding amendment of the judgment for allowing $1,000.00 for the use of the automobile by Plaintiff, the District Judge, in his "Reasons for Judgment" on this point stated:
With regard to attorney's fees, the case of Chauvin v. La Hitte, 229 La. 94, 85 So.2d 43, is apposite here. In the cited case, the vendee successfully rescinded a sale because the vendor fraudulently sold a used car representing it to be new, but the Court did not award attorney's fees, stating the well-settled principle that attorney's fees are not assessable as an item of damages unless clearly provided for by statute or contract.
We, likewise, find the Trial Judge was correct in denying Plaintiff interest on his loan and insurance premiums, as these are not proper items of damages, especially in a case in which Plaintiff made use of the automobile for some twenty months before the date of trial.
We find no error in the judgment of the District Court; hence, the judgment is affirmed. Defendant is to pay all costs in both Courts, except the costs of Plaintiff on appeal, in view of Plaintiff's unsuccessful attempt to amend the judgment in his favor.