<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by stevenrellim:
i bought a new car in 97 , on a recent trip to body shop for esimates for hail damage, they tell the had been repainted , before it was sold to me as brand new, i live in ohio, do i have any recourse,please somebody help! <HR></BLOCKQUOTE>
There was a similar Appellate case in California, about 5 to 8 years ago, and I was desperately trying to locate it. No success, especially when you can't remember the names of the parties, e.g., was in Volkswagen, Audi, Porcshe, or ?
Anyway, from what I can recall of the case, the Defendant Car manufacturer and dealer defended on the grounds that the car, prior to sale, had fallen from a car carrier truck, was repaired, and eventually sold to the Plaintiff. The plaintiff's complaint was based on fraud, in that the car was constantly having problems, and was later discovered by Plaintiff to have been a repaired vehicle. The Plaintiff alleged he was never informed of that fact, and would never have purchased the vehicle but for that fact. The Dealer's argument was that since the car was repaired to manufacturer specification, there was no fraud.
Summary: Judgment for Plaintiff. General and Actual damages, including HUGE punitive damages.
A party may rescind a contract if, among other things, his or her consent was given by mistake or obtained through fraud, or there has been a material failure of consideration. (§ 1689, subds. (b)(1) & (2).) "Thus, when a party has been induced by fraud or mistake to enter into a contract, the party may have the contract set aside and seek restitution of those benefits lost to him by the transaction. [Citation.]" (Merced County Mut. Fire Ins. Co. v. State of California (1991) 233 Cal.App.3d 765, 771.) It has long been recognized that a used vehicle buyer may rescind the sales contract where the seller fraudulently misrepresented the vehicle's condition, causing a failure of consideration. (Pennell v. Smith (1928) 204 Cal. 540, 542.) Even an "as is" sale disclaimer "does not necessarily confer on the seller a general immunity from liability for fraud. It is fairly well established in respect to sales of personal property that such a provision 'does not prevent fraudulent representations relied on by the buyer from constituting fraud which invalidates the contract or is a ground for damages.' [Citations.]" (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 740-741.)
Reveles produced uncontroverted evidence Toyota induced his purchase of the truck by assuring him it was "'was fully inspected for safety, was in perfect condition and had Nissan original parts.'" When the truck broke down a few weeks later, however, Toyota's own service department readily discovered it had irreparable frame damage, and Reveles's mechanic found, "t was evident that past off road/physical abuse had caused the frame to be torn and separated," and "[t]he control arms . . . were not Nissan." Far from being safe and in "perfect condition," the truck was irreparably damaged and unsafe to drive at the time Toyota sold it to Reveles. Obviously, Toyota either fabricated the pre-sale inspection altogether, or its actual results; either way, Toyota misled Reveles to his considerable detriment.
The court's determination a party prevailed on a contract action is an exercise of discretion which should not be disturbed on appeal absent a clear showing of abuse. (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1456.) Viewed in conjunction with Toyota's $9,300 settlement payment, Reveles's undisputed evidence fully supports the court's finding he "recovered a greater relief in the action on the contract . . . ."7 (§ 1717, subd. (a).) Reveles is therefore entitled as a matter of right to reasonable costs under section 1717, subdivision (a), including attorney fees.
I would obtain all of my evidence, photos, statements of mechanics, and my original sales contract. Bring a lawsuit based on fraud and deceit. Perhaps, at the very least, you could get the contract voided, and a refund of your money, minus usage costs for the duration of time you drove the vehicle. Or, you could take it to the limit like the Plaintiff, above, had done.
Good luck to you.
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[This message has been edited by I AM ALWAYS LIABLE (edited June 05, 2000).]