#### Meyer *v.*The Packard Cleveland Motor Co.

*Sales*— Breach *of warranty*— Evidence—Newspaper *advertisements and circulars*— Contract *stipulation waiving verbal agreements*— Inapplicable *to advertisements, when*— Question *for jury*— Necessary *repairs upon defectively rebuilt truck.*

1. Where one is engaged in the manufacture and sale of motor trucks, and the rebuilding of its used trucks, newspaper ads or circulars touching rebuilt trucks, authorized and published by such motor company to the general trade, are competent evidence in behalf of the purchaser of any such truck, who knows of such ad and relies upon the same, unless it appear from the special contract signed by the parties touching such sale that such special contract withdrew or altered the representations made in such general ad.

2. The language of a written order or contract, of sale — “All promises, verbal agreements, or agreements of any kind pertaining to this purchase not specified herein, are hereby expressly waived” — does not exempt such contract from the force and effect of such general advertisement touching the character and quality of a truck in process of rebuilding when such contract was .executed.

3. In a suit, on account, for work and repairs done upon a truck in process of reconstruction, as aforesaid, when sold pursuant to such general ad and written contract as aforesaid, the question whether or not such repairs, or any part of them, were made necessary by the defective rebuilding of the truck, within the terms of such general ad and the written order for such rebuilt truck, is a question for the jury under proper instructions.

(No. 17103

Decided December 29, 1922.)

Error to the Court of Appeals of Cuyahoga county.

The Packard Cleveland Motor Company brought suit against John J. Meyer in the municipal court of Cleveland, Ohio, on an account for $906.40, for *329work and repairs done on a motor truck originally purchased from the motor company by Méyer. The amount of value of such work and repairs as shown by the account was not disputed. It was claimed, however, by Meyer, that the account for work and repairs upon the truck was largely, if not entirely, due to defects in the truck at the time of the sale, in violation of the warranties made by the motor company to Meyer in regard to it.

The defendant also set up in the municipal court a counterclaim for damages caused by the loss of the use of the truck during the time consumed in making the repairs.

The ease was tried to a jury on the evidence submitted by the plaintiff and defendant. The defendant, Meyer, testified in substance that he wanted to buy a motor truck for his brother; that he noticed' a newspaper ad as to “rebuilt trucks,” which was introduced in evidence as follows:

“Packard Used Trucks.

“If you are going to buy a motor truck, it will pay you to see our complete line of rebuilt Packards and other makes of trucks. We have every size Packard from 1 to 6 tons. Any style body for flat work, and several dumps. All are ready to go to work. We have several other makes of rebuilt trucks. Our rebuilt trucks look good, and will give you the very best of service. *Gome in and buy a Rebuilt Guaranteed Pachard.*Good Terms. Also several Whites and a few good Fords. See Mr. Whitaker, Used Truck Dept. Packard Cleveland Motor Co., 5200 Prospect Ave., Rosedale 2990. Central 498.

*330“Packard Motor Cars.

“Ask the Man Who Owns One.

“Used Truck Bulletin.

“Are you a user of motor trucks? Do you know how and where to buy a truck and get the best bargain? Do you know that a high-grade used truck rebuilt and renewed is a better buy and of more substantial value than a cheap new truck? Read the following answers to these questions and learn what the Packard Cleveland Motor Company has to offer its truck owners and buyers.

“Packard Cleveland Motor Company

“Used Truck Department

‘ ‘ 5200 Prospect Ave.,

“Cleveland.

“Branches

“Akron Youngstown Canton

. “Rebuilt Packard vs. New Truck at Same Price.

“1.

“A rebuilt Packard is practically- a new truck as far as wearing qualities and operating efficiency is concerned.

“2.

“A rebuilt Packard carries the same warranty as a new truck.”

Defendant .further testified that after reading above advertisements, and relying upon same, he consulted the Packard Motor Company with reference to a motor truck, and, finally, after some negotiations, purchased a rebuilt motor truck. He ad-' mitted that he signed an order for it, as show by plaintiff’s Exhibit 16, as follows:

*331“Bill of Sale — Packard Cleveland Motor Company to John J. Meyer.

“Packard Motor Cars

“Ask the Man Who Owns One.

*“January 17, 1919.*

“The Packard Cleveland Motor Company: I hereby purchase from you, under the terms and conditions and at the prices herein the following:

“Used Car Truck, in condition as shown.

“Motor No. 124734.

“B.O. 660.

“Wants delivery about February 20, 1919.

“5-5%E Packard Dump Truck completely equipped with No. 8200 cab and curtains, radiator guard, new tires all around, wood hydraulic hoist and 135 cubic feet dump body. Insurance: Fire, Theft, Collision.

“Terms: $1,494 Cash 12 notes at $250 per month.

Amounts ..........................................................-.............. $4,200.00

........................................................................ 294.00

“Total .......................................................... 4,494.00

“Deposit herewith, credit........................ 150.00

“Balance to be paid upon notification that this purchase is ready for delivery to me ................................................................ 4,344.00

“Signed: John J. Meyer, Purchaser.

“Business Address: Warner & Swasey Co.

“[Residence Address: 896 Roanoke Rd.

“Accepted...........................................................191....

“The Packard Cleveland Motor Co.,

“Salesman: F. L. Knapp.

*332“In case the U. S. Government, prior to delivery, levies any special tax on the vehicles hereby sold, the purchaser agrees to pay such tax.

“All promises, verbal understandings or agreements of any kind pertaining to this purchase, not specified herein, are hereby expressly waived.

“Not valid unless signed by an officer of the company.

*“July 12, 1920.”*

Meyer claims that the rebuilt truck which he bought was at the time he first saw it in the process of rebuilding; that rebuilt trucks were warranted by the custom, usage and advertisements of the Packard Cleveland Motor Company as substantially as serviceable as new trucks, save and except that their life would not be as long as that of an entirely new truck.

■ The reply of the motor company to Meyer’s claim, after denying generally Meyer’s statement of defense, and denying certain matters specifically, continued: “Plaintiff avers that at the time said truck was sold defendant, said truck was in perfect running order and repair.”

At the close of the evidence, the trial judge used the following language:

“The defendant offered newspaper advertisements, and offered a little circular gotten out by the motor company, and he alleges likewise that there was an agreement with the salesman, an oral agreement prior to the time the written contract was entered into, whereby the plaintiff’s agent said that the goods would be warranted or guaranteed. This *333is denied by the plaintiff. * # # That leaves us to the consideration of what is an implied warranty, what is meant by the doctrine of *caveat emptor,*and so on. * * * The defendant came to this plaintiff’s establishment. He had read an advertisement about rebuilt trucks, of any size, or style, which were guaranteed, and he called upon the Packard and there he discussed this truck. He claims that the salesman actually warranted, or impliedly at least, that it would be fitted for the purposes intended.

“So far as these implied warranties are concerned, the court will hold that it does not see how an implied warranty could have any bearing on this case, because there is an express agreement made by the parties. The court does not think that an implied warranty, within the meaning of the statute, would have application to this case.

“As to the express warranty that the defendant alleges was made at the time, the court cannot see why, if an express warranty is made it was not embodied in this contract. The contract.,is supposed to set forth all of the terms. The law is that where a man can read a contract and doesn’t read it, he is bound by it. If after getting this contract he failed to read it, but signed it and made payments on it, the court, cannot see how at this time this court can permit him to say that he didn’t know what he signed, or intended to sign something else and that he was defrauded. * * *

“We have the situation of a man ** * **wh0 makes a contract with the plaintiff for a used truck, ‘In its conditions as shown.’ He reads or should have read it. Then there is a clause in the contract which reads, ‘All promises, verbal agreements or *334agreements of any kind pertaining to this purchase, not specified herein, are hereby expressly waived.’ He signs the contract, he takes the truck, makes payments thereon and doesn’t make any claim until some time later. The court doesn’t think he has any claim in this situation. * * * The jury is instructed therefore to go out and return a verdict for the plaintiff. ’ ’

The defendant excepted. Motion for a new trial was overruled, and judgment was entered upon this directed verdict.

Error was prosecuted to the court of appeals, which affirmed the judgment below.

Error is now prosecuted to this court to reverse the judgment of the court of appeals.

*Messrs. Tolies, Hogsett, Ginn & Morley,*for plaintiff in error.

*Mr. Demid A. Christopher,*for defendant in error.

"Wanamaker, J.

From the foregoing statement of facts which appear in the record, the following would appear to be beyond dispute: That Meyer’s attention was first directed to this truck by the Packard Cleveland Motor Company’s newspaper advertisement, headed “Packard Used Trucks,” as shown in defendant’s Exhibit 1, in which advertisement appeared : ‘ ‘ Our rebuilt trucks look good, and will give you the very best of service. Come in and buy a rebuilt guaranteed Packard.” And also by the advertisement shown in defendant’s Exhibit 2: “Packard Motor Cars * * * Used Truck Bulletin * * * *335Do you. know that a high-grade used truck rebuilt and renewed is a better buy and of more substantial value than a cheap new truck? * * * A rebuilt Packard is practically a new truck as far as wearing qualities and operating efficiency is concerned. * * * A rebuilt Packard carries the same warranty as a new truck.”

Thereafter, Meyer signed an order for the truck he bought, on January 17,1919, by virtue of which it is claimed that the newspaper advertisements aforesaid were eliminated from all consideration in the-contract of purchase, and, secondly, that all oral agreements during the negotiations were likewise' eliminated, for which elimination the following portion of the exhibit is especially relied upon as sufficient :

> “All promises, verbal understandings or agreements of any kind pertaining to this purchase, not specified herein, are hereby expressly waived.”

It is agreed, however, upon all hands, that Meyer bought a 5-ton rebuilt dump truck, which at the time above exhibit was signed was in process of rebuilding, and not completed; that it was not delivered to Meyer as a completed rebuilt truck until the following March, nearly two months thereafter.

It is admitted that Meyer paid $4,200, a substantial sum, to a standard motor car company. "What was Meyer to get in return for his money? A toy truck, or a transportation truck; a 5-ton dump truck merely in size or style; or was it to be a 5-ton dump truck for the usual and ordinary service to which dump trucks are put? The consideration to be given to Meyer for his $4,200 was not merely a shape of *3365-ton size, but a thing fitted for practical, useful, substantial service as a dump truck.

When a man buys a horse he hardly needs a warranty that it is a horse, or that it is not a mule or a camel, though they belong to the same general family of burden bearers, and if there was such a warranty it would be equal folly to undertake to determine whether or not it was express or implied.

The sales act, which is relied upon in argument in this case, is held to apply in behalf of plaintiff in error touching implied warranty, especially Section 8395, General Code, which reads:

> “Subject to the provisions of this chapter and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:.

> “(1) When the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or. manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.

> “ (2) When the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the *goods*shall be of merchantable quality. * * *

> “ (6) An express warranty or condition does not negative a warranty or condition implied under this chapter unless inconsistent therewith.”

It is quite clear from the above language of the Sales Act, that the “goods supplied under a con*337tract to sell or a sale” must be for “some particular purpose,” as distinguished, from a “general purpose.” Here the rebuilt truck was clearly sold for the general purposes served by the usual and ordinary 5-ton dump truck. It would be a misnomer, with which commercial and business trade is entirely unfamiliar, to use the words “particular purpose” as to any such article for manufacture or sale as a dump truck. It must of necessity be what it purports to be, what it appears to be. It is indeed manufactured for that purpose, and for no other purpose; it is sold for that purpose, and for no other purpose; and to give it the use of the limited words “particular purpose,” would seem to be misusing and perverting the plain and ordinary meaning of everyday language.

If, however, the Sales Act should be held to apply, clearly the implied warranty that is inherent in and essentially a part of every such sale could be shown by evidence, if any, outside of the doctrine of *res ipsa loquitur.*In this case, the 5-ton dump truck speaks for itself as to the purpose, and it was a question for the jury to determine whether or not, in accordance with usage and custom, construed in connection with the general advertisements made by the Packard company touching such trucks, it was a part of the consideration of such sale.

It is quite clear and conclusive that the language in the written order or contract of sale, “all promises, verbal agreements, or agreements of any kind pertaining to this purchase not specified herein, are hereby expressly waived,” relates solely to any special contracts or arrangements expressly made by *338the parties outside of the general custom or usage in such sale of goods.

It in-no wise negatives or nullifies the things or matters set forth by the Packard Motor Company in its general newspaper ads which appear in evidence in this case. Whether or not the newspaper advertisements, and the things and matters therein set forth, were relied upon by the purchaser as essentially descriptive of the dump truck he purchased, and entered into the contract between the parties, is a question for the determination of the jury. Again, whether or not the repairs were fairly and justly referable to defects in the rebuilding of the truck by the Packard Company is also a question for the jury. And likewise is the related question as to how much, if any, of such repairs was made necessary by the defendant’s abuse or misuse of the truck, or in the course of the general usage of the truck. This cause should have been left to the jury for determination, under proper instructions by the trial judge as to the law of this ease, both upon defendant’s defense to the account sued upon and upon defendant’s cross-petition.

It may be urged that this is a substantial modification of the old doctrine of *caveat emptor,*let the buyer beware. Is it not high time, however, that that doctrine should be somewhat modified; at least that it should have no higher place in the business life of a nation than the companion doctrine, “let the seller beware.”

There is entirely too much disregard of law and truth in the business, social and political world of today. I am using this term in its broad sense. Constitutions, statutes, sound legal and ethical prin*339eiples are becoming little more than mere scraps of paper, not only between individuals, but among states and nations.

It is time to hold men to their primary engagements to tell the truth and observe the law of common honesty and fair dealing. Such a change, in my judgment, would not be so much in the line of revolution as in the line of reasonable reform. Honest men need not fear it; dishonest men should be kept in fear of it.

Judgment reversed, and cause remanded to the trial court for such other and further proceedings as are required by law.

*Judgment reversed.*

Hough, Jones and Matthias, JJ., concur.

Robinson, J., concurs in proposition 1 of the syllabus and in the judgment, but does not concur in propositions 2 and 3 of the syllabus.

Clark, J., took no part in the consideration or decision of the case.