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Carte v. Flury Buick-Jeep Inc.

February 15, 1973


Appeal from Circuit Court, Klamath County. Donald A. Piper, Judge.

Gerald R. Pullen, Portland, argued the cause for appellant. With him on the brief was David R. Vandenberg, Jr., Klamath Falls.

Sam A. McKeen, Klamath Falls, argued the cause and filed the brief for respondent.

Tongue, Justice. O'Connell, Chief Justice, and Denecke, Holman and Bryson, Justices. McAllister, Justice, concurs in the result.


This is an action for damages arising from a transaction involving the purchase by plaintiff from defendant of a used 1962 Buick, into which the motor of plaintiff's 1961 Buick was to be installed by defendant. Defendant appeals from a jury verdict and judgment for $750 general damages and $2,500 punitive damages.

Before considering defendant's various assignments of error, including those involving the sufficiency of the evidence, it is necessary to review the facts, bearing in mind that in such an appeal plaintiff is entitled to the benefit of all favorable evidence and to all reasonable inferences from such evidence. Cronn v. Fisher, 245 Or 407, 416, 422 P2d 276 (1966).

In September 1966 plaintiff took his 1961 Buick to defendant to repair a broken lower control arm. Defendant's service manager, Mr. Ridenour, said that repairs would cost about $75. He also said that defendant had a 1962 Buick with a cracked motor block for sale and suggested that plaintiff buy it and have defendant transfer the good motor block of his 1961 Buick to that car. Plaintiff agreed.

He then purchased the 1962 Buick for $150 and left both cars with defendant for the transfer of the motor. Ridenour told him that this would cost about $150. It was also agreed that the 1961 Buick would be left "disassembled" and that there was "no use putting it back together." At that time plaintiff intended to "junk" the 1961 Buick (without a usable engine block).

A few days later plaintiff picked up the 1962 Buick and was told that the mechanic had a "little trouble" to "get your motor to fit in there." At that time he "left all the parts of the 61" with defendant, at the suggestion of Ridenour that plaintiff "sell your old car to the mechanic."

Two days later plaintiff talked to the mechanic, who offered him $50 for the disassembled 1961 Buick. He rejected that offer and the mechanic then helped him load the parts in his pickup truck to take home. At that time he noticed that the spare tire, with "85 to 90 percent rubber," the radiator, and the power steering unit were missing. He also had the 1961 chassis towed to his home.

About three days later plaintiff checked the motor numbers on the two cars and discovered that the 1961 motor had not been put into the 1962 Buick. He did not, however, notify defendant or make any complaint to defendant at that time, or until the filing of the complaint.

What had happened was that defendant's mechanic encountered difficulty in getting the 1961 motor into the 1962 Buick and then discovered that the 1962 motor block was not cracked, but had a hole in the timing chain cover that could be repaired by transferring to it that part, which was "interchangeable," from the 1961 Buick. The 1962 motor was then put back into the 1962 Buick, which operated "just like it was supposed to." The car was then delivered to plaintiff, who operated it without difficulty for 20 months and testified that it was worth $800 at the time of delivery.

Defendant's service manager, Mr. Ridenour, testified

that he explained to plaintiff what had actually happened, but plaintiff denied that he did so. Plaintiff also testified that it was possible to install the 1961 motor in the 1962 car by making some minor alterations.

Forty-five days later plaintiff received from defendant a bill for $169, including $150 for labor to "switch engines" and $19.55 in gaskets, "coolant" and other parts. That bill was never paid.

Plaintiff testified that if he had known the facts he would not have purchased the 1962 Buick, but would have had the 1961 Buick repaired. He also testified that after he learned the facts he first intended to reassemble the 1961 Buick.

At some unspecified time, however, either before or after plaintiff received the bill, but after he had discovered that the motors had not been "switched" and that some of the 1961 parts had not been delivered to him, plaintiff sold the 1961 Buick, in its disassembled condition, to Mr. Dotson, a mechanic friend of his, for $75.

Also, according to plaintiff:

"The agreement was that he would buy my car, and put it back together with the parts that were supposed to have been there, the parts from Flury Buick, and that he would pick them up from Flury Buick, and that I would, if any parts were missing, I would furnish him with the parts to put this car back in the shape that it was before it reached Flury Buick."

Plaintiff also testified that there were $300 worth of parts missing at that time which he was required to furnish to ...

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