620 PATE V. J. S. MCWILLIAMS AUTO Co. [193 - : • PATE V: J. g. MCWIL:LIAM g Ati+0' COMPANY. • ,-- , 4-4510 . Opinion &liver ea FebruarY 15;1937. • 1. SALES—WARRANTIES.—In an action on a contract for the sale of_rnotor yehicles which were sold under the "uniform warranty" against defective material and workmanship, but limited to making good any part or parts supplied by the manufacturer which shall occur within a specffied time, evidence that the seller represented • that they would use less gas and oil and the upkeep would be less, than the trucks defendant had been using was inadmissible n as contradicting a written instrument by parol. 2. SALE g —FRAUD—WAIVER.—Where an action for the purcflase price of Midge motor trucks was defended' on the ground Of fraudulent iepresentations made in the procurement of the contract
ARK.] PATE V. J. S. MCWILLIAMS AUTO CO.: 621 to the effect that they would . use less gas and oil and, cost less to ,operate than ahevrolet trucks appellant had been using, such defense held, waived by making no -cornplaint and using the trucks and making the monthly payments froth May, 1935, to Decem-ber, .1935, after it' was discovered that the representations were. hot true; and such representations were no more than opinions, and did . not rise to the dignity of warranties. APpeal froth Ouachita Circuit Court, Second -bivi-siOn; Gus W:-Jdues, 'Judge ; affirmed. H. G. Wade and Gaughan:1, Sifford, Godwint .Gaug-kan, for appellant: :• . • J. S. Brooks, for 'appellee. - • Humi ,thiEy S , . ..S: . SUit .WaS brought' by' appellee
against appellantS'in the' seCond diVisioh Of the" Circuit calla Of' OuaChita, Cdtu r 4 to' recOver ' the' balance , dne two' Nage truCkS , and; to eiiforce , a 'lien against ...eaCh thick f or 'the amount 'due' bir , each, , a g • ProVided . by§' $729, CraWfOrd & M . oses 'Digest.: " . ! Appe a l n l t traded . two . used , Chevrolet trucks . to ap-Pellee for two new 140dge : trucks and . entered into a )vrit-ten - contraCt :to pay; the difference . in : casb at the rate ;of siiteen dollars per month on each truck until . the,balanee • of the . purchase „ money was fully paid., •: ;f4 Tbe, vrittn ,contracts. prOvided .that the writing contain. the entire ,:agreement,..affecting: the . purchase and that no: agreement,..understanding or . warranty . of. any , . nature concerning same has , been 'made or introduced into or is a part . of this. transaction. . ... • . , ..,! , .• The only warranty:Contained in the . written contract is whatis. characterized as . a..` `Uniform Warr'anty" . and as folloWs ; • .• • '` The 'Manufacturer : Warrants' 'each hew inotoi vehicle 'Manufactured by it-to be free from -defects in material 'and workmanship;:Under normal use s atid service, its obligation under this warranty' being limited' to making good ' at its factory . any' part, 'or • parts,' thereof,' including all equipment or trade acceSsories . (except tires:) supplied by , the car . manufacturer, WhiCh . shall oCcur Within 90 days after making delivery of , such' vehicle to' the original purchaser, or before such velMe r has'been driven 4,000 miles, whichever event shall' first 'occur.",
622 PATE v. J. S. MCWILLIAMS AUTO CO. [193 There is no question that the written contract was entered into and none as to the amount due thereon. The only defense interposed to the action is that the trade made and the contract entered into was induced by false and fraudulent representation by appellee that the new trucks would not consume any more gas and oil than the Chevrolet ttucks, and that the upkeep of the Dodge trucks would be less . than the upkeep of the Chevrolet trucks. Proof was introduced by appellants . to support the representations made, and that after being used .severai months the Dodge trucks consmhed much more gas and Oil than the CheVrolet . truCks had done. Appellant§ admitted , that they used the trucks, driving one of them twenty thousand miles and the other twenty-seven thousand mile's, and made the monthly payments on them from May 28, 1935, the date they were purchased, to December 18, 1935, at which time appellants undertook to turii Said trucks back to appellee. Appellee would not receive them and the drivers left them about a block from appellee's place of busines§ and this sUit followed. At the conclusion of apiiellant's testimony appellee. moved for an instructed verdict in its favor, whereupon, the court instructed verdict for the amounts due and declared a lien on the trucks and ordered them sold to pay same, from which is this appeal. The court was correct. The representations made were in conflict with the written instrument and inadmissible in evidence as a defense. To allow the reiiresenta-tions as a defense would amount to contradicting a written instrument by parol evidence. Even though the representations had not conflicted' with the written instrument appellants waived tbe right to defend on the ground of a fraudulent procurement of the contract, by making no complaint and by using the trucks and making monthly payments thereon long after they claimed to have discovered that the Dodge truck consumed more gas and oil than the . Chevrolet trucks bad consumed. Again, the represeniations were general in character and cannot be : regarded hi law as more than appellee's
ARK.] 623 opinion. They did not . assume the dignity of warranties. There is no complaint that there was any violation of the written warianty contained in the contract. • No error appearing, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.