Zabriskie Chevrolet, Inc. v. Smith

240 A.2d 195 (1968)

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Nature of the Case

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Facts

D signed a form purchase order for a new 1966 Chevrolet Biscayne Sedan which was represented to him to be a brand-new car that would operate perfectly. D paid P a $124 deposit. On February 9, 1967, D tendered his check for $2,069.50 representing the balance of the purchase price and license and transfer fees. Delivery was made to D's wife February 10, 1967. While en route to her home, about 2 1/2 miles away, and after having gone about 7/10 of a mile from the showroom, the car stalled at a traffic light, stalled again within another 15 feet and again thereafter each time the vehicle was required to stop. When about halfway home the car could not be driven in 'drive' gear at all, and D's wife was obliged to then propel the vehicle in 'low-low' gear at a rate of about five to ten miles per hour, its then maximum speed. D immediately called his bank, stopped payment on the check and called P to notify them that they had sold him a 'lemon,' that he had stopped payment on the check and that the sale was canceled. P sent a wrecker to D's home and determined that the transmission was defective. P replaced the transmission. D refused to take delivery of the vehicle as repaired and reasserted his cancellation of the sale. Eventually, P sued D for the purchase price. D counterclaimed for the return of his deposit.