
    NO. 7420
    OTTO T. HIRSIUS VS CAPITAL CITY AUTO CO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

By Mb Honor John St. Rani.

Plaintiff alleges that he purchased an automobile from defendant, that he made two attempts to make the car run, hut was unable to do 30; whereupon he returned the car to defendant, and he now sti03 for the dissolution of the sale and the return of the price.

.Defendant set up an excerption of no cause of action, urging in substance that plaintiff has not alleged that the defects in the automobile were non apparent i. e. that they could not have been discovered by simple inspection.

Ihe exception is not well founded, For unless warranty be expressly waived, the vendor warrants the thing sold as fit for the purpose intended. Fee vs Sentell, 52 An 1957. And an auto-'cbi. r in which ^is notprunning condition is manifestly not fit for -he osmose Intended.

It is not incumbent upon the buyer in such case to seek cut, allege and prove jtftijf the particular and underlying cause of the defects which makes the thing sold unfit for the purpose intended; particularly when that thing is a complicated peiee of machinery; it is sufficient if he alleges ana afterwards proves that as a fact such 'defects exists.

On the contrary it is for the vendor in such cases to show that the defects were such as the buyer knew or might have discovered by simple inspection. Otherwise we should have the quaint result that the buyer must give the thing an elaborate and thorough examination in order to show that the defect was not discoverable by a simple inspection; or start an expert investigation into the condition of the machine in order to establish the self evident faot that it did not run.

11.

On the merits ét the oaee involves only a question of faot. She evidence abundantly shows that ths plaintiff was in need of the machine and desirous of- having It, and that in good faith hs made at least two attempts to get It to run; tut although quite competent himself to run it, and also assisted by experts, he was unable to obtain results*

January 23, 1919.

There was no# attempt whatever on the part of defendants te- Who* the nature of the defects in the automobile, and we thevcferw ggr»e with the district judge that the sale should be resulted.

Judgment Affirmed.

New Orleans La,  