IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

CHAMPAIGN COUNTY, ILLINOIS

JOHNNA S. COLE, )

Plaintiff, )

vs. ) No. 92 S 2991 JIM OSTERBUR, )

Defendant. )

REPORT OF PROCEEDINGS at the hearing of the Bench Trial had in the above-entitled cause before the Honorable Harry E. Clem, Judge presiding, on the 14th day of April, 1993.

APPEARANCES:

MS. JOHNNA S. COLE

Appearing pro se

MR. JAMES F. OSTERBUR

Appearing pro se

THE COURT: 92 S 2991, Johnna Cole versus Jim Osterbur. Plaintiff appears. That's you, ma'am, correct? Defendant appears.

And you are?

MR. ADAIR: I'm her boyfriend.

MS. COLE: He was subpoenaed.

MR. ADAIR: Yes, I was subpoenaed by that man right there.

THE COURT: All right. Then you will need to wait back there, sir.

MR. ADAIR: Oh, okay.

THE COURT: Cause called for bench trial. Miss Cole, you're going to testify?

MS. COLE: I can, yeah.

THE COURT: Ma'am, it's your claim and your opportunity to present evidence in support of it. I don't know what you intended to present to the Court today.

MS. COLE: Okay. Yeah, I will.

THE COURT: Stand and raise your right hand.

(Witness sworn.)

JOHNNA COLE,

the plaintiff herein, having first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY THE COURT:

Q. Could you state your name and address, ma'am.

A. My name is Johnna Cole, 2608 Brownfield Road, No. 4, Urbana, Illinois.

Q. And you are the plaintiff, that is the person bringing this lawsuit, correct?

A. Yes.

Q. And you're suing Mr. Osterbur, the gentleman seated down here at the table; correct?

A. Yes.

Q. And you say that he owes you $1200?

A. Uh-huh.

Q. Yes?

A. Yes.

Q. Would you tell me why you believe that's the case?

A. He sold me a vehicle that was advertised with a new motor, a new transmission; and it lasted about 2 months, the car. And I had called him and told him, and he said he would come and fix it; and he fixed it. And it ran for probably 2 to 3 months, and it just broke down again and hasn't run since.

Q. Well, let's back up. First of all, you say that this was advertised. Was there some sort of advertisement in the newspaper?

A. Yes.

Q. Or some kind of hand bill or something?

A. I have the ad.

Q. May I see it, please.

A. It's circled.

Q. Yes, ma'am. I was trying to see what publication it was.

And we are, I gather, talking about the 1982 Buick Skylark that's mentioned in this advertisement; is that correct?

A. Yes.

Q. You saw the advertisement and apparently were interested in purchasing the vehicle. I gather you called the telephone number that's listed here in the ad?

A. Yes.

Q. And that's how you first became acquainted with Mr. Osterbur?

A. Yes.

Q. When did you actually make the agreement with

Q. Okay. Where did you make the agreement with him to purchase the vehicle?

A. At his home in Royal or Ogden.

Q. On that occasion what did you say to him, and what did he say to you?

A. He told me that it was -- there was a new motor, new transmission and the motor should run for another hundred thousand miles.

(End of side A of Tape No. 600 and beginning of Side B.)

Q. Anything else that he said?

A. Not that I can remember.

Q. Did you drive the automobile?

A. I did not drive it until April. I purchased it in March and didn't drive it until April.

Q. Where was it between March and April?

A. Sitting in front of my house.

Q. How did it get from Mr. Osterbur's house to your house?

A. My friend drove it.

Q. At the time that you had this conversation with Mr. Osterbur at his house in March, was the vehicle there?

A. Yes, he was.

Q. The vehicle, I asked you was the car there when

you talked to him about it in March at his house?

A. Yes, it was, at his house.

Q. Okay. And you didn't ask to drive it?

A. Yeah, I drove it.

Q. Okay. You say that approximately 2 months after you bought the vehicle problems developed with the vehicle. What sort of problems?

A. I guess the heads went dead or something, the head gasket.

Q. Ma'am, do you know anything about fixing cars?

A. No, I don't.

Q. Tell me what the car did, not what somebody told you was wrong with it.

A. It just would not run.

Q. In what fashion, It wouldn't start? The engine wouldn't propel the car once it was started? What

exactly were the symptoms that you noticed in regard to whatever was wrong with the car?

A. I would start, but it wouldn't move.

Q. Okay. You called the problem, I gather, to Mr. Osterbur's attention?

A. Uh-huh, yes.

Q. By telephone?

A. Yes.

Q. What did you say, and what did he say?

A. I just told him the car wasn't running, and he offered to come down and look at it.

Q. Which he subsequently did?

A. Yes.

Q. That was at your place?

A. Yeah, at my place.

Q. What did he say to you on that occasion, and what if anything did you say to him?

A. He told me what was wrong with it, and he said he'd fix it.

Q. What did he say was wrong?

A. The head gasket was bad. I think that was all.

Q. And he said he would repair the problem?

A. Right, yes.

Q. Did he take the vehicle from your place to somewhere to do that?

A. No. He took it apart in the driveway and took the parts wherever they needed to be fixed at. I gave him money to go get the parts for what it needed, and he brought it back and put it together.

Q. How did the car operate after that?

A. It ran pretty well for another couple months, and then the same thing happened.

Q. When you say the same thing happened, it would start but the vehicle wouldn't go?

A. Yes.

Q. Wouldn't go. Okay.

A. At the time that he was at the house when he fixed the car, he gave me $300 of my money back; and he said that he agreed that it was going to need a new motor, and he would pay for half.

Q. That apparently would have been, when he fixed the car, would have been in either May or June; right?

A. It was in -- I think it was the 11th of July when he fixed it.

Q. Okay. And now we're talking about a problem that developed in September or thereabouts, right?

A. Right.

Q. When that problem developed, what did you do?

A. I didn't really do anything, in fact, for a while because I didn't know what I was going to do with it. I called and told him it was broke down again, and

he offered to fix it; and I told him, no, I don't want him to come and fix it. And I just decided to take him to small claims court because it was advertised for a new motor and new transmission and both of those are out, neither one of them work.

Q. Well, excuse me ma'am. Apparently I misunderstood what you said because I understood you to say that the motor ran but the car wouldn't go forward.

A. It did not stay --

Q. Are you now telling me that the motor won't run?

A. When you put it gear, it just died. it would not go anywhere. The car wouldn't move.

Then when he fixed it, then it was driveable for a little while and then it broke down again. During that time when it was driveable, the transmission was going out.

Q. Okay. I neglected to ask you. How much did you

pay for the car in the first place?

A. $1500.

Q. And that's what you feel you should get back because the car didn't do what it was supposed to do?

A. I was claiming $1200 He already gave me $300 back.

Q. Yes, ma'am. I'm sorry. You're claiming $1200 because you paid him 1500 and he gave you 300 back?

A. Yes.

Q. Is there anything else you wanted to say about your claim that you haven't had an opportunity to say already?

A. I had an estimate done at Worden-Martin's on the motor and how much and what everything was wrong with it.

Q. Is there someone from Worden-Martin who is here who is going to testify?

A. No, but I brought a written estimate.

Q. Ma'am, if you had read the material that you were advised to read the first day you were in court, you would have discovered that that's called hearsay evidence. Evidence in court has to be presented by somebody who is here to testify because to do otherwise violates the other party's right of cross-examination. Mr. Osterbur can't asked questions of the paper that you brought. We need the person who made the paper here.

Is there anything else you wanted to say about your claim?

A. No.

THE COURT: Mr. Osterbur, do you have questions that you want to ask?

MR. OSTERBUR: Yes, I do.

THE COURT: Go ahead.

MR. OSTERBUR: Should I stand u, or stay seated?

THE COURT: You may be seated.

CROSS-EXAMINATION

BY MR. OSTERBUR:

Q. My recollection is a little bit different from yours.

THE COURT: The statement of the defendant is ordered stricken.

Ask questions, sir. That's where we're at.

MR. OSTERBUR: Pardon me.

BY MR. OSTERBUR:

Q. When you were out at my house to buy the car, did you ever feel any pressure to buy the car?

A. No, I didn't.

Q. Did you but it the first day you were there?

A. No, it was the second day.

Q. Were you satisfied with the way it ran at the time that you bought it?

A. It ran fine at the time that I bought it, yes.

Q. Do you recall that I -- we actually bought the car for $1575 originally; and in checking the car out to make sure it was in good running order for you, I discovered that one tire had a small problem and I reimbursed you or charged you $75 less for the car at that time; do you recall that?

A. Yeah, I remember that.

Q. As I recall it, you drove it off the property. Do you recall that?

A. Yeah, I drove it halfway, and then I changed vehicles.

Q. Either way, you did drive it?

A. Off the property, yes. But I didn't drive it home.

Q. All right. When you first called me at about 4 months after you had purchased the car, you said that car

didn't work properly, something was wrong with it; and I came out and looked at it, is that correct?

A. That's correct?

Q. And do you remember what happened then?

A. You fixed the car.

Q. Not at that time.

THE COURT: This testimony of the defendant is ordered stricken.

If you don't like her answer, sir, testify in opposition to it when it's your turn.

MR. OSTERBUR: Okay.

THE COURT: You're not allowed to argue with her in court.

BY MR. OSTERBUR:

Q. Did the car that you had, when you were driving the car, did the car ever overheat?

A. It overheated one time.

Q. Do you think there's any possibility that they might be connected?

A. I don't think so. The car, the crank shaft is

bad. It's got a thrown rod. Everything is wrong with it.

Q. When you called the second time and I came out to look at the car, do you have -- you showed me a long list from a garage of things that were wrong with it. Do you still have that list?

Q. Did I tell you at the time that a newly bored engine has a smooth cylinder wall and has no ring at the top?

A. I don't remember. I don't know anything about a car.

Q. All right. Do you recall that you said the motor rant well after the car was then fine after it was fixed for $50. Well, do you recall that I asked you why the cruise control was disconnected?

A. The cruise control was never connected. When I test drove that car, it did not work. Neither did the air conditioner. I took the air conditioner to have freon put in it, and the guy said it's not even hooked up. Neither one of those items were hooked up because I

had to take it somewhere and have it d one.

Q. Can you tell me -- back when I gave you the $300, can you tell me what you remember about that?

A. You said that you though it would need a new motor and you would go half on it and you had gotten the price from Auto Zone of $800 or something.

Q. Do you remember why I was willing to give you any money, or did I explain that at all?

A. Well, I don't know. I don't know if it was guilt. I don't know. Why did you?

Q. Can you tell me whether or not your boyfriend, Mr. Adair, was upset on that day?

A. Because I had replaced a lot of things on it, small things; and then it breaking down, it was my only vehicle. I couldn't get my child to and from day care, couldn't get to work; and he was upset because I had spent all my money on the car.

Q. How upset was he?

A. He was upset.

Q. Really upset?

A. Well, how --

THE COURT: Is there some point to this, Mr. Osterbur?

MR. OSTERBUR: Yes, there is.

THE COURT: Then get to it.

MR. OSTERBUR: The person over there, well, I'll let -- should I give my defense now, or may I close?

THE COURT: No. Ask her questions. And if there's something about this incident that involves Mr. Adair that you think is pertinent, you may bring it out; but the line of questioning that you were pursuing was not designed to do that anytime in the near future. Get to the point.

MR. OSTERBUR: It might not sound like a question.

MR. OSTERBUR:

Q. Was your boyfriend ever about to hit me, do you suppose?

A. No, I don't think so. He was mad and he was upset, but I never seen him raise a hand to strike you.

I asked him politely twice to go in the house, that I would take care of it; and finally he turned around and he went in the house.

Q. When I fixed your motor, did I ask you anything in particular in return for fixing the motor?

A. Not that I know of, no.

Q. Did I ask you that Mr. Adair not be present during the entire time that I fixed the motor, is that correct?

A. Yes, you did.

Q. Was he there?

A. Not that I know of.

Q. Did he show up for lunch?

A. He showed up for lunch, yes, but he was not aware that you were there.

THE COURT: What does this have to do with the condition of the vehicle, Mr. Osterbur, since you have no counterclaim on file for assault or anything else that would seen to relate to what it is that you're trying to bring out?

MR. OSTERBUR: The entire matter could have been resolved in a much more satisfactory manner.

THE COURT: Perhaps it could, but that's what we're here to do today.

MR. OSTERBUR: Mr. Adair, when I came first to look at the car, he wanted all his money back immediately, without fixing it or anything, or any such matter; and part of this goes to the question of he was telling me that he had a gun, he owned a gun and it was under the

seat of his --

THE COURT: Mr. Osterbur?

THE WITNESS: No.

THE COURT: Just a moment, ma'am.

You won't testify. And unless you want to suggest something to me, you haven't yet, Mr. Osterbur, this doesn't have anything to do with the mechanical condition of this car and whether statements that were not true were made at the time that you sold the car.

Now, if you want to suggest something in regard to Mr. Adair and this transaction that related to one of those things, I'll hear it; but whatever else went on outside of court, any discussion, proper or improper about settling the case, unless you are contending that some settlement agreement was actually reached, in which case I'll hear that evidence, has nothing to do with the things that are before the Court.

MR. OSTERBUR: I'll try and do better.

BY MR. OSTERBUR:

Q. When I gave you $300, what did I tell you?

A. I answered that.

Q. You told me that it was for half the motor --

A. Right.

Q. -- roughly of the lower block and plus a hundred dollars or so for the installation of that motor?

A. Who would do it for a hundred dollars?

Q. Is that what I told you?

A. Not that I'm aware of, no. You just told me for a small block, $300, and that would cover half of it.

Q. And you accepted that money?

A. Exactly. But the parts that I paid for for the car at the time that you fixed it were used from basically that money.

Q. The $50 that you paid later on came from that

$300?

A. Well, basically, yeah. If you gave me 300 and then I gave you 50 to pay for the car, then that's more or less.

Q. Then that was 3 weeks or so later, wasn't it?

A. No, it was the same day.

Q. I appeared at your house twice, is that correct?

A. One day you came looked at the car, the next day you came and fixed the car. The day you fixed the car is the day that you gave me the check.

Q. I recall giving you the check earlier.

THE COURT: This testimony of the defendant is ordered stricken.

MR. OSTERBUR: I guess that's enough questions.

BY MR. OSTERBUR:

Q. Well, let me ask you, how is it that the motor and the transmission all quit at once?

A. It didn't all quit at once. I said when the car, after you fixed it nd it was running, the transmission started going out. And it was going down the road one day, it started smoking and it started knocking, and that was it. I got it to the driveway, and that's where it sat. It hasn't started, ran or anything since.

Q. What made you think that the transmission was going out?

A. Well, because when you put it in drive and it didn't go anywhere, you put it in reverse and it didn't go anywhere, that's probably the transmission. I had an estimate done on that, too, and they said it was out.

MR. OSTERBUR: All right. I guess that's enough from me.

THE COURT: Do you have anything else you want to claim, Ms. Cole?

MS. COLE: No, I don't.

THE COURT: You may step down.

(Witness excused.)

THE COURT: Do you have other testimony that's here today available for presentation that you were going to present, ma'am?

MS. COLE: Just a witness of what was wrong with the car or something?

THE COURT: I'm asking you if there's any other person who's here today that you were intending to call as a witness?

MS. COLE: Yes, Richard Adair.

THE COURT: Mr. Adair, would you come and stand before the bench and raise you right hand, please.

(Witness sworn.)

RICHARD ADAIR,

called as a witness by the Plaintiff herein, having been

first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY THE COURT:

Q. Would you state you name and address.

A. Richard Adair. I live at 2608 Brownfield Road,

Trailer No. 4, Urbana, Illinois.

Q. Mr. Adair, starting wherever you first became involved in this particular transaction, would you tell me what you know of your own knowledge; that is, what you witnessed or what went on in your presence.

A. Well, we went out and took a ride in the car after she started having problems with it, and he was starting to tell me all this stuff he's put into it motor-wise, expense, transmissions.

Q. Whoa, whoa, whoa. I need to know when things happened; and when you move to the next thing, I need to know when that happened.

I gather from what you just said that sometime after she bought the car in March there were some problems, and she had you ride in the car with her --

A. Right.

Q. -- to know what those problems were?

A. Right.

Q. When was that?

A. As far as dates, she'd know more than I would as far as dates.

Q. Well, as best you can remember, when was it?

A. Well, what? We bought the car in March?

Q. No, she can't help you.

A. Okay.

Q. You tell me what you remember.

A. Well, I would say probably a month after she bought the car. I mean, I can't remember that far back. I'm sorry.

Q. Just minute. All we need, Mr. Adair, is for everybody to do the best they can.

A. Right. I understand.

Q. But I have to know the sequence of things because sometimes the timing of things--

A. Right.

Q. -- is important.

A. I understand.

Q. A month or so after she bought the car --

A. Right.

Q. -- she had you take a ride with her, and what was the card doing at that time?

A. It was like losing power. It just seemed like it never was fully running right. It would lose power and then it would gain power, and then one day it run fine and the next day it wouldn't run very good at all.

Q. I gather that you said then that Mr. Osterbur

told you some things about the condition of the car. This was after this ride to observe why it wasn't working right?

A. This was about the time that he some down and wanted to go for a ride in it, and I had a few things I wanted to tell him abut the motor and the brakes and a few things.

Q. So, after you rode in the car with Ms. Cole, Mr. Osterbur was contacted and he came to Ms. Cole's house?

A. That's right. That's correct?

Q. And now we're talking about that incident?

A. Right. That's correct.

Q. Why don't you tell me what Mr. Osterbur said on that occasion and what, if anything, you told him about the car?

A. Well, I had told him that the brakes seemed like they weren't in very good shape. You'd hit the brakes

and they would just kind of seize, like. I mean, they were -- the master cylinder would just kind of jerk. You know, when you come to a stop, it was like the car wouldn't stop suddenly, it would just kind of slowly stop. And I told him the brakes weren't in very good shape. I said we had had an estimate from the garage on the brakes and they were needing to be replaced.

And I think we kind of got into a heated argument that day because I said, you know, you ad said new brakes, and I said the motor has been kind of acting funny, and I said it was supposed to have been new and so is the transmission. And he had first said that he had a cousin or somebody that had hone al the work. And I asked for his cousin's name to get a hold of him so I could talk to him about the car. Well, he acted like I didn't need to know this or for some reason he wasn't wanting to give me the information. So, that was

basically it.

And it remember coming back to the house and him jacking the car up looking at the brakes, saying that we could go down to Farm and Fleet and get the pads. And I'm saying, well, you know, why should she have to do this when everything in the paper said new. I said, that's why she bought the car from the beginning, thinking the car was in good shape.

And it kind of went from there. I felt like I wasn't getting very far with him; and I just said, "Why don't you be a nice guy and give her her money back?"

Q. Go ahead.

A. And so that was about it. And as far as me having a gun or --

Q. Well --

A. -- I don't even own one.

Q. Just a minute. I've already told him, the

byplay that went on outside of court I'm not interested in.

A. Okay.

Q. That's something that is something for another day in another court.

A. All right.

Q. But what I do need to know is, okay, that's what you told him about the car and that's what he told you on this occasion that he came down to look at it.

A. Right.

Q. Okay. Were you involved in this particular transaction after that?

A. Well, whenever she'd bring it to my attention or, you know, as far as taking it to the garage, I was involved there of having the garage report done one the motor after we got it the second time it went bad.

Q. Okay. After Mr. Osterbur performed the repairs

that he performed on the occasion that you and he had this conversation that you just described --

A. Uh-huh, right, right.

Q. -- Ms. Cole, I gather, told you that the car still was not working right and you had occasion to verify that that's the fact; right?

A. Well, just from -- I mean, I've done some mechanical stuff. I never tore into it or anything, but I could tell there was something wrong with the motor.

Q. What was the car doing after he fixed it that you though maybe something was amiss?

A. Well, after he pulled -- it was acting up before he fixed it. And then after he fixed, it ran good for maybe a month, maybe a good month or two, but the transmission was starting to slip and the brakes were never really --

Q. What was the car doing that led you to believe

that the transmission was slipping? What do you mean by that?

A. Well, you's put it in drive and -- I mean, I don't know if you've ever had a car do this -- but you put it in drive and you take off. I had to take off slowly. If I got in it and I wanted to take off down the road, it wouldn't do nothing but sit there and look at me. But now, if I put it in drive and slowly take off, it would work fine. But if I wanted to just take off very fast, it wouldn't do it.

I drove it like that for maybe a month or so after he fixed it, or tow. And then finally the motor, I don't know maybe 3 or 4 months after that, it just finally gave up again.

Q. When you say gave up again, what do you mean by that?

A. I brought it home and it died on me one day on

my lunch hour at work and I had to leave it parked down at the bank. And I finally got it to go again, and I drove it home; and just about before I got home, it started acting crazy. It wouldn't hardly pull itself. It was dinging and everything else. It just didn't want to run. And so it sat out in front of the trailer for probably a year. It just didn't want to run right.

So, then I had a tow truck come out and get it -- well, it was about a year after that -- and had them tow it down and I had a written estimate done down at Worden-Martin's. I said if I need this in court I want to know. And he would have willingly testified, you know.

Q. Well, just a minute. We'll get to that momentarily.

Is that the last thing that you had to do with the condition of the car was you arranged to have it

towed in?

A. Right. I wanted to get a garage report saying what was wrong with it so that when I went to court, you know, I could use this if you wanted to see it showing from a garage, not a gas station, but a garage what was wrong with it.

THE COURT: All right. Ms. Cole, Mr. Osterbur, this matter was set for a half an hour because it's difficult for us to know when things are set how long they are going to take; and it's obvious to me that it's going to take at least twice as long, perhaps longer to get this concluded. And we have other people who are waiting for the Court's time, so I'm not going to have any alternative except to recess the proceedings and hear the rest of this on another day.

Are the two of you available at 3:30 on April 21st? That would be the next time I have available that we could do this again.

MS. COLE: Yes.

MR. OSTERBUR: I can make it.

THE COURT: Okay. You may step down, Mr. Adair.

MR. ADAIR: Can I say one more thing? I mean just for a minute, sir, you Honor?

THE COURT: Why don't you -- we'll go ahead and hear you out on what's called direct examination, if there's something else you want to say; and then he's going to have a right to ask you questions when this is reconvened. So, you're going to need to come back.

But why don't you tell me so you don't forget to tell me later. Why don't you tell me what's on you mind now.

MR. ADAIR: Well, I was wondering if I go ahead and get the mechanic from Worden-Martin's and have him brought to court, would that be all right with you?

THE COURT: Well, that's something that I'll talk

about. If that's what you want to tell me --

MR. ADAIR: I mean, the next time we come in, I was going to go ahead and have him come because he said he would.

THE COURT: Fine. Why don't you step down.

MR. ADAIR: Okay.

(Witness excused.)

THE COURT: The docket entry is: Evidence heard on behalf of the plaintiff. Hearing recessed to be reconvened for conclusion of bench trial 3:30 p.m. on April 21, 1993, Courtroom F.

Because both sides of this are representing themselves without the services of an attorney, let me say this for the benefit of both of you so that we can conclude this next time you come back to court. If there was any misunderstanding about it before, let me make it perfectly clear that anybody who is to be heard in court

has to be present physically to give testimony and be questioned by the other side as you were when he asked you questions and as you're going to have a right to do if he takes the stand to testify as part of his part. That's some of the rules that we follow here, and it's only fair to one side or the other.

A piece of paper is something that somebody discussed, for example, with you, ma'am, but they didn't discuss it with him and he has a right to ask questions about it and make sure that what's on it is accurate. And the same thing would be true of anything he wants to present.

So, you have not rested, that is concluded your case yet, ma'am, so anybody you want me to hear from has got to be here and ready to go on the 21st. And if for some reason that person can't be here, you're going to have to make a request to have the trial date changed,

and it has to be done before the 21st.

Same thing with you, Mr. Osterbur. I don't know if you were intending to present anybody other than yourself; but if you are, they have to be here and ready to do on the 21st or you're going to have to request that the hearing date be changed. And whatever is here and ready to go on the 21st, unless the date has been changed in the meantime, is what we're going to decide the case on.

Hearing is declared to be in recess.

Ma'am, since this has been marked as an exhibit, we're putting it in the file and it will be here if you need to make reference to it late on.

(Which were all the proceedings

had in this cause on this date.)

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

CHAMPAIGN COUNTY, ILLINOIS

JOHNNA S. COLE )

Plaintiff, )

vs. ) No. 92 S 2991

JIM OSTERBUR )

Defendant. )

CONTINUED REPORT OF PROCEEDINGS at the hearing of the Bench Trial had in the above-entitled cause before the Honorable Harry E. Clem, Judge presiding, on the 21st day of April, 1993.

APPEARANCES:

MS. JOHNNA S. COLE

appearing pro se

MR. JAMES F. OSTERBUR

appearing pro se

THE COURT: This is 92 S 2991. Plaintiff appears. Defendant appears. Bench trial is resumed.

Mr. Osterbur, as I recall, towards the end of the proceedings Mr. Adair had been giving some testimony and you were asking some questions. Did you finish with what you wanted to ask him, or did you have other things you needed to inquire about?

MR. OSTERBUR: I had other things I needed to inquire about.

THE COURT: Mr. Adair, would you take the stand again. You're still under oath since you were sworn last time.

MR. ADAIR: Okay.

THE COURT: Go ahead.

RICHARD ADAIR,

recalled as a witness herein, having been previously

sworn, was examined and testified further as follows:

CROSS-EXAMINATION

BY MR. OSTERBUR:

Q. Back when -- well, let me start. Did you come out and look at the car with you girlfriend?

A. Couple times, yeah.

Q. When it was out at the farm before you purchased it?

A. No, I never did.

Q. Why not?

A. She purchased it and she said she wanted it. She went and got it and I was working or something and I didn't come out and look at it.

Q. What happened when -- (inaudible)?

A. Well, when I saw it when she first got it, I thought she had paid too much for it, my personal opinion on it. And that's what I told her. I said, "I think you

paid a little too much for the car."

Q. Didn't you tell me when I -- Did you provide any maintenance to the car?

A. She had got it hot one day and brought it out to my mom's on a weekend. It was on a Saturday, and her hose was leaking, a bottom hose. And I cut it down a little bit and fixed it so it wouldn't leak anymore, and that was about all I ever did to it that I can remember of.

Q. Back when you were driving the car when it died for the last time and you said that the car was running reasonably well and that just before you got home it started smoking and clanking and --

A. Well, it started doing it that afternoon and I had left it up here at the bank because it started running bad and I couldn't even keep it running. So, I shut it off and left it there and went on and walked to

work. Went back after work and got it, and she followed me on home. And it wasn't running -- it was just starting to clang. It wasn't really getting too hot until we got in the drive and it started kind of smoking.

But I had only just used it for about a half hour to and hour and it started making that noise, and I brought it down here to the bank and parked it because it just wouldn't run all the way in to work. So, I just left it there and I say it started to screw up again, and that's when she started knowing that the motor was getting bad again.

Q. Back when you were originally had problems with it, your girlfriend, Ms. Cole or Miss Cole, told me on a number of times that when she had first called me that --

A. It would lose power on us a lot.

Q. She had told me that you absolutely didn't want her to call me, wanted her to take me to court. Why was

that?

A. Because I felt like you were just kind of pushing us around. I mean, I felt like you wanted to say it had everything new in it --

THE COURT: Mr. Osterbur?

THE WITNESS: And I just felt like --

THE COURT: Just a minute, Mr. Adair.

THE WITNESS: Okay.

THE COURT: What he thinks about anything is not pertinent. Discussions you had with him about whether this case should go to court or not are not pertinent.

The issue is: Was there something wrong with the car and whether there was some warranty given by you that was breached, and so get on with something else other than the line of questioning that you're pursuing.

I believe I told you last time that exchanges between you ant this witness other than as they related

directly to the condition of the car were not relevant and they're not relevant today, either.

BY MR. OSTERBUR:

Q. Did you tell me when I came out the first time, did you tell me what had happened to the car to get it in this condition? Did you have any idea what happened to the car?

A. I had no idea. You mean when you first pulled it apart?

Q. When I first appeared after Johnna had called me.

A. If I remember right, I just said it was losing power. It wasn't running right. It would barely pull. I know there was a few times it had to sit in the drive because we couldn't even drive it. It would not even pull itself. You'd start it, and it just didn't have any power. It wouldn't even run.

I remember right when she had to have you take it apart, it just wouldn't run.

Q. Can you tell me why it took so long it you -- the car didn't run for 6 months, why did it take 18 months beyond the time that the car was purchased to subpoena me to court?

THE COURT: It is not, and don't ask another on like it.

BY MR. OSTERBUR:

Q. Did you ever check the fluid in the transmission when you were having problems with it?

A. It was fine.

Q. I checked the oil in the motor when it was starting to go bad, and it was fine.

As a matter of fact, the car, I even got it started after it sat for a while in front of the house the second time it went bad. I had Dee Russo some down and get it and I had him bring a battery and it started, but it was just knocking. It actually would run, bur it was just beating itself to death. And he told before I even spent any money having it taken apart, he said, "I think you've got a rod out of it." So, I felt like to prove it to you that the motor was bad --

THE COURT: Mr. Adair, i'm ignoring everything you said after you said that you checked the fluid level that he asked you about. Listen to what he asks and answer the question he asks and don't ramble on, please.

THE WITNESS: Okay.

THE COURT: Go ahead, Mr. Osterbur.

BY MR. OSTERBUR:

Q. You inferred that the brakes were not good. What

makes you think the brakes were not good?

A. Well, when you hit the brake, the brake would just kind of siege. I mean, it was like it would jump. It would just kind of hesitate. It wouldn't stop real quick. It was just like it was spongy, the master cylinder. And then we finally took it to a garage and had it checked and they said the brakes weren't very good on it.

Q. Was that the front brakes or the rear brakes?

A. All the way around.

Q. All the brakes were supposedly bad?

A. Uh-huh, getting bad.

Q. Bad or getting bad?

A. They were just about, I think, within a couple hundred more miles of being out. I can't remember what he said. It was down there at Meineke.

Q. Were the rotors and everything supposedly bad?

A. No, the rotors weren't bad. The pad was just getting bad, and he said the master cylinder was weak.

Q. Did you find any other problems with the car?

A. The transmission. Right after you fixed it the first time, it started going.

Q. Do you have any idea what might have caused it to go?

A. I have none whatsoever.

Q. Can you recall jumping over a curb or hitting an enormous pothole or anything like that?

A. That was the only car we had to go back and forth to work, and please believe me it was driven just to work and back and to the grocery store.

THE COURT: The question is: Did you hit a pothole or jump a curb?

THE WITNESS: No, no.

BY MR. OSTERBUR:

Q. Did you ever notice it leaking any fluid of any kind?

A. I sure did not.

MR. OSTERBUR: I guess that will be all.

THE COURT: Do you have any other questions that you wanted to ask him about the things that were raised by Mr. Osterbur, ma'am?

MS. COLE: Pardon me?

THE COURT: Do you have any other questions that you wanted to ask Mr. Adair concerning anything that Mr. Osterbur raised in his questions?

MS. COLE: No, I don't.

THE COURT: You may step down, sir. Thank you.

(Witness excused.)

THE COURT: Did you have additional witnesses that you wanted to present, ma'am?

MS. COLE: Yes, sir, I do. Tim Swigart. He works

Worden-Martin.

THE COURT: Would you come and stand before the bench and raise you right hand, please.

(Witness sworn.)

TIM SWIGART,

called as a witness by the Plaintiff herein, having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY THE COURT:

Q. Would you state your name and address, sir.

A. Timothy Swigart, 808 South Spring Lake Road, Mahomet.

Q. And by whom are you employed?

A. Worden-Martin.

THE COURT: This is the person who examined your car, is that right, ma'am?

MS. COLE: Yes.

BY THE COURT:

Q. I gather that you're familiar with the vehicle that is an issue here. Would you tell me from the beginning from wherever you first had any contact with somebody about that what you know about the condition of the vehicle, please.

A. The car was towed in, and I was told to tear the engine down and inspect to see what was wrong with it. Upon tearing the engine down --

Q. About when was that, if you recall?

A. It was, well, I've got an estimate right here when it was done.

Q. Well, if there's something that would refresh your memory about when did that occur?

A. It was November 10, 1992.

A. When I got the vehicle in and started tearing it down, it had a broken head bolt, a number 3 cylinder on the cylinder head. So, I went ahead and removed the cylinder head and could see where the piston had been moving too far up and basically hitting the cylinder head, and talked to my service adviser. He said go ahead and pull the oil pan on it and find out what was wrong. I removed the oil pan and found number 3 rod bearing had basically seized up and deteriorated to the point where it was no longer there, it was causing the piston to hit the cylinder head; and basically it had ruined the cylinder, the crankshaft and the connecting rod.

Q. Did you examine any other part of the car other that the engine?

A. No, sir.

Q. Were you requested to do so?

A. No, sir. I was not.

Q. In regard to the damage that you did observe, did you form any opinion as to how that damage came to be caused?

A. Well, I really cannot say. The engine had oil in it. It can just -- I don't believe it was from abuse. I think it may have just been an old engine, basically, a lot of miles on it. The condition of the cylinder walls, where the rings wear on the cylinder walls, it had grooves around all four cylinder walls from the rings and that is a good indication that it's got a lot of miles on it.

Q. How long have you been in the business that you're in now, sir?

A. 13 years.

Q. Based on your experience, were you able to from an estimate as to how old the engine was, or how many miles it had on it if that's the frame of reference that

you normally deal in?

A. To get that amount of wear on the cylinder walls themselves, it would be in excess, I would imagine, of over 80,000 miles.

Q. You said you made an estimate. You conveyed to the plaintiff some information as to how much it would cost to fix the problems that you found, is that right?

A. Yeah, I've got written estimate right here.

Q. How much did you estimate that that would cost?

A. For the whole thing?

Q. Yes, sir.

A. $2,438.

THE COURT: Ms. Cole, was there something else that you wanted him to tell me about that he hasn't already?

MS. COLE: I would just like to ask you, would all that problems with the car be caused by overheating?

THE WITNESS: No. The cylinder head bolt, the

reason why it was broke, on this particular engine after a period of time the head bolt itself will get rusty and cause it to break. And sometimes taking them out and putting them back in more than once will cause that, too. But the head bolts were, as I recall, several of the head bolts ere very rusty and pitted, and one of them had actually broke.

MS. COLE: That's all I wanted to know.

THE COURT: Questions you wanted to ask him, Mr. Osterbur?

CROSS-EXAMINATION

BY MR. OSTERBUR:

Q. Did you find any problem with the oil? Was there any foreign materials of any kind in it?

A. Well, there was metal in it from the rod bearing in the crank shaft.

Q. Did you notice any kind of a grainy texture to

it?

A. Didn't notice any, no.

Q. The overheating that the motor had experienced, what happens to a car when it's badly overheated?

A. Well, are you talking really overheating or just overheating to the point where it can cause a head gasket to blow.

Q. Would you, if you ran all the fluid out of the motor and there was no steam of any kind appearing from the motor and it had been running beyond the time that any liquid had been in the motor whatsoever, what kind of damage could be construed to occur?

A. If you were to do that, you would warp the cylinder head. You would probably start deteriorating pistons.

Q. Would you deteriorate the cylinder walls?

A. If you deteriorated the piston, it would

probably start deteriorating the cylinder walls, right.

Q. Causing it to wear quickly?

A. Well, it would cause -- if your piston started to melt, you would start getting the aluminum buildup on the cylinder walls.

Q. Could a badly overheated motor start running out bearings?

A. In my experience, I've never seen that happen.

Q. Could it?

A. Anything is possible.

Q. If the bearings started to go out, would that cause any head bolt, when the piston started hitting the cylinder, would that cause a head bolt to break?

A. I do not believe so. Not in this case.

Q. Why not in this case?

A. As I explained earlier, the head bolts were rusty and pitted, and I believe that's what caused it to

break.

Q. Did you check anything about the transmission at all?

A. No, sir. I did not.

Q. Can you explain exactly what a rebuilt motor consists of?

A. Usually if you get a rebuilt motor, either a short block or a long block, depending on which it is, it usually comes with new crankshaft, new cam shaft and lifters, new pistons and bearings, new oil pump and the cylinder head reconditioned, new valves and timing gears and chains, depending on like I say if you get a short block or long block.

Q. What's the average warranty on a rebuilt motor?

Q. Are you familiar with Auto Zone and their engines and warranties?

A. Uh-huh. Theirs are usually 12/12.

Q. They're 6 and 6.

THE COURT: No, sir. You may not argue with him.

For the taped record, the testimony, unsworn testimony of the defendant is ordered stricken.

BY MR. OSTERBUR:

Q. How far did you disassemble when you took the head off and took the oil pan off?

A. I removed the cylinder head and the oil pan and I removed all four pistons, and I think that is as far as I went.

Q. Do you know what -- Did you inspect the brakes?

A. No, sir.

MR. OSTERBUR: Well, I guess that's all.

REDIRECT EXAMINATION

BY THE COURT:

Q. The damage that you saw when you examined this

particular car, was that something that would be consistent with a car that had overheated?

A. No, sir.

THE COURT: You may step down.

(Witness excused.)

THE COURT: Did you have additional evidence you wanted to present, Ms. Cole?

MS. COLE: No.

THE COURT: Plaintiff rests.

Mr. Osterbur, this is your opportunity to present evidence in support of your defense.

MR. OSTERBUR: I would like to call Danny Osterbur.

THE COURT: Would you come and stand before the bench and raise you right hand, sir.

(Witness sworn.)

DANNY OSTERBUR,

called as a witness by the defendant herein, having been

first duly sworn, was examined and testified as follows:

THE COURT: State your name and address, sir?

THE WITNESS: Dan Osterbur, 1005 North Garden Court, Mahomet.

THE COURT: The other Mr. Osterbur, I don't know what he know about this. Why don't you ask him some questions and get him going in the direction you want him to tell me about.

DIRECT EXAMINATION

BY MR. OSTERBUR:

Q. Did you own a 1982 Buick Skylark?

A. Yes.

Q. Did you -- well, I'm sure your dad had given me the car?

A. Yes.

Q. Did you have the transmission rebuilt just before giving the car to me?

A. The transmission was rebuilt 3-2 or '87.

Q. And how miles did the car have on it?

A. It doesn't have it on the receipt that I have here; but I have a receipt when we had the brakes fixed, which was earlier than that. It had 56,943 then, and that was a little over a year before that. So, I would imagine it had on it about probably around 70,000 miles.

Q. Okay. So, the transmission and brakes and what have you were redone?

A. Yes.

Q. And it had about 70,000 miles or a little more?

A. Yeah. The brakes were redone at 56,943. Best I can remember, that was around 70,000.

MR. OSTERBUR: Okay.

THE COURT: Any questions you want to ask him about his testimony, ma'am?

THE COURT: You may step down, sir.

(Witness excused.)

THE COURT: Additional witnesses, Mr. Osterbur?

MR. OSTERBUR: Just me, sir.

THE COURT: Raise you right hand.

(Witness sworn.)

JIM OSTERBUR,

the defendant herein, called as a witness herein, having been first duly sworn, was examined and testified as follows:

DIRECT EXAMINATION

BY THE COURT:

Q. State you name and address, sir.

A. Jim Osterbur, 2191 County Road, 2500 East, St. Joseph, Illinois.

Q. Mr. Osterbur, this is your opportunity to tell me why you think you don't owe the money that the

plaintiff claims.

A. I rebuilt the motor and did it properly an I just started to build it at the beginning in fact. the car was given to me. It was just delivered and dropped on my doorstep, so to speak.

And I was told that the transmission was recently rebuilt, very recently. The car had 113,000 miles on it. I got the impression that the transmission was rebuilt within the 90,000-mile range. I was told that the brakes were done at about that time, too, by Danny Osterbur's dad. That was the story I got. That's the story I used.

I got the car running. When it appeared the motor was not running well, I made the car run and by redoing the head resetting some things and what have you. And I assured myself that the transmission was in good working order and the brakes were working fine.

The car sat around for quite a while after that, debating on whether I wanted to rebuild the motor or not and finally elected to rebuild to motor and spend $750 on parts and machinery, machining, to have the motor rebuilt. The crankshaft was polished and the block was bored and the pistons were bought new and it had full rebuilt job.

The machinist who did the work unfortunately moved to Des Plaines, Illinois, two months ago; and I did not feel it was a good thing for me to ask him to come all the way back here to give testimony to that.

My dad was there and saw that it was being rebuilt, but I assume that that would not be considered a terribly proper witness. And the only other person saw it being rebuilt, I asked him and he did not want to take time off from work to come in. I have a statement from him. but that's all I have. I could have subpoenaed him,

I know, but I didn't.

Anyway, the motor was rebuilt in its entirety, and it ran well when it was finished, when I got the motor done. I ran it for roughly 2 to 3 hours worth altogether. I made short and the long trips with it and drove it around and assured myself that the transmission and the motor and everything was fine.

I inspected the radiator hoses that were new, and I assured myself that they were running properly. And I took the cap off the radiator and checked the water fluid through the radiator and made sure that that was all proper and running well. And the motor had been boiled out to remove andy particles and problems that might have been left over from machining when that work was done, so I felt that it should be and would be just fine.

The cruise control did work at that time. And

for that matter, the air conditioner did work at that time, too. The cruise control was hooked up.

When I initially or when Johnna came to buy it, I told her I expected the car to run for a considerable length of time, but I did not guarantee it. I also told her that it was a rebuilt motor and I didn't mean that the carburetion type system that's on it or any of the external parts were new. They are not, just the internal moving parts are new.

When she called me the first time, she told me something was wrong with the car and I went out and took a look at it. She was not there when I got there. Her boy friend met me, and we got in the car and drove around a section that. He made it very clear that he wanted all the money back, period. No "if's," no "ands," no "buts." And that was all. And he didn't offer any idea or any statement of any kind indicating that there'd been any

sort of problems with the car.

Something was wrong with the motor at the time. I couldn't identify entirely what it was. It wasn't a bad enough problem at that moment in time. I could clearly tell that something was a little wrong with the car, or not little, but something was wrong with the car. And like I said, we would have worked something out.

When -- I was going to -- the thought of fixing the car in Mr. Adair's mind was totally inappropriate and completely not acceptable, although he didn't mention it, he simply wanted the money back. That's all he wanted, period. And he became quite belligerent at that point. And I never had -- I guess it was obvious that I wasn't willing to fork over a check for $1200 after he had taken a good car, and I felt I knew for sure it was a good car and a good motor and done something to it and would not tell me what had occurred to it.

So, I moved him aside, essentially, and talked to Ms. Cole and told her that there are any number of things that can occur to the motor, either a brand new motor or a good motor or a newly rebuilt motor and has nothing to do with the mechanic. And one of the things that has occurred to my dad's, for instance, and to me for that matter is that the oils filter gasket that -- I've had an oil filter out on a running motor that has suddenly freed itself from its -- where it's supposed to be and started dumping oil out. And a motor that was a good motor went to a motor that was a rather poor motor in less that 30 seconds. And, you know, that simply a mechanic's problem. It is a mechanic's problem but it isn't. It is a manufacturer's defect and that's all there is to it. And you can take it to the manufacturer if you want to. That usually doesn't work.

Anyway, like I say, I explained to her that

there are other problems with. And at that point in time I decided since they were not going to -- at least her boyfriend was not going to allow me to even look at the car and fix it and was not going to -- simply wanted the money back and was not going to tell me what happened to the car, something happened to the car, wouldn't tell me what happened to the car in sense or form, simply said "I want the money back," that's basically it, I then decided that even though, you know, I don't know what's wrong with the car but the end result is that a car that she had bought from me I felt should have gone further that it did irregardless of what the problem was, even if it was some type of manufacturer's defect, that, no, decided that either that I would pay for half of the cost of a motor from Auto Zone in this particular case. They had a price on motors that I had noticed not long before this all occurred, and gave her what would have been our

could have been half the price of the short block, which is the new motor less the top hit or the cylinder, which has the valves in it. I was certain that that surely survived and was okay.

And so, I gave her that because, like I say, I felt even if it was a manufacturer's defect or whatever happened to the motor, I felt that surely it should go further than that, so I gave her half the motor and felt that that was it. I felt that the deal was done and left.

And like I say, while I was trying to talk to her, her boyfriend was acting in a threatening way, so we did not discuss in length anything.

So, two or three weeks later she called me up again and then she threatened, well, they're going to take me to court. And/or I need to fix it or something or I don't know what, but then she kept saying that her

boy friend, she didn't want to take me to court but her boyfriend wanted her take me to court. Anyway --

Q. I'm not considering that any more than I did when I told you a half an hour ago that that isn't relevant.

A. I understand, sir. I'm trying to relay the story as best I can.

Q. Well, get to the parts that have to do with the condition of the car, and don't have to do with settlement negotiations and you byplay with Mr. Adair.

A. When I came out the second time, the -- I asked her, specifically, what happened to the car. She said that the car had been running fine until she had been running out to her friend's somewhere and the car overheating light had come on, and she had stopped and ascertained that the car was leaking, and she elected to drive the 15 miles further on to get to her destination.

She told me that the radiator hose, when they opened the hood, the radiator hose had a knife slit. That's how she described it to me, a knife slit a half inch long in the top radiator hose just behind the nipple. The knife slit is not common to a radiator hose blowing out. When a radiator hose gives out or springs a leak, it usually develops a small pin hole or a big tear if it really is bad.

And she also presented me a big list of how this motor was terrible. I replaced the head gasket for her at that time because I personally felt that, you know, this is not my job and this is not my duty; but she needed the car, and I felt that I'd just go ahead and do it for her because I had some sympathy for her is really what it was.

So, I put in the head gasket, just partly to prove that this computer printout was whatever it was. The car ran fine at that time. And I showed her on the car, I made her stay out there with me while I took it apart, and I made her feel inside the cylinder wall that they were smooth, that there was no ring at the top of the cylinder walls. And she looked and agreed with that at that time, and I put the head gasket in and the car ran well.

I asked her how it is that the cruise control had gotten disconnected or why she had it disconnected. She said it didn't work. And she also said she didn't know how to use it and felt that I know that the cruise control was hooked up. I hooked it up myself as a clip that does not come off holding the cruise control on. To get it off, you have to sort of disconnect the throttle to the carburetor to get it off. So, someone had taken

it off without telling her, apparently.

I personally feel that the car was tampered with, and I personally feel as well that the overheating, serious overheating that she does describe herself and the fact that she says that the motor ran fine right to that point were seriously involved in how this car got to this stage.

I would agree or state that the cylinders were okay. When I took the cylinder off, they looked okay. I repaired a valve, took it to a machine shop and had the surface of the valve fixed where the ring of the cylinder head gasket had gone through and showed Johnna that or she helped me with another part of the valve to clean it up so that it would be in decent repair when it was back together. And assumed, I felt, that there was about a 50/'50 chance that a rod bearing or crank bearing would be okay, that the motor had survived and would be okay,

but certainly no guarantees of any kind.

I do think that the overheating or some other type of tampering were directly involved in this motor and perhaps the transmission. I do not know, nor do I know where it came from. That is essentially it.

THE COURT: Do you have questions you want to ask him about his testimony, Ms. Cole?

MS. COLE: Yes.

CROSS-EXAMINATION

BY MS. COLE:

Q. Are you a certified mechanic?

A. I'm not a certified mechanic by a school. I've done a lot of mechanic work.

Q. Do you remember when I purchased or came out to purchase the car and you told me it had a good hundred thousand miles left on it, I should have no problem with it?

A. I told you that the motor was rebuilt and that the transmission was recently rebuilt, and I told you that I'd expected the car to run quite a long time and but that was not guaranteed.

I also told you that the internal moving parts of the motor is what was rebuilt; and the external parts, which would include the carburetor type device and other parts of that type were not replaced and were not new.

Q. In the ad, I believe I recall that it said "new motor and rebuilt transmission," is that correct?

A. I haven't read that ad for two years or more, ma'am. I don't know exactly what is says.

Q. I believe it said new motor.

THE COURT: Ma'am, you can't argue with him. Ask him questions and then ask another one after he answers.

BY MS. COLE:

Q. When you gave me the $300 back to agree to pay

for half the motor, are you aware that it costs almost a thousand dollars to put a motor in a car so that I would pay more to put a new motor in it than I paid for the whole car?

A. I've put motors in them and I've known a lot of different mechanics that do it, too; and you can get a motor installed and taken out and installed for about a hundred to a hundred and a half, two hundred at the most.

MS. COLE: That's all.

THE COURT: Mr. Osterbur, I want to be sure I understood something you said earlier. Did I understand you correctly to say that this car had about a hundred and thirteen thousand miles on it at the time you sold it to Ms. Cole?

THE COURT: You may step down. Thank you.

(Witness excused.)

THE COURT: Other than your own testimony that you just concluded, Mr. Osterbur, was there evidence you wanted the Court to hear?

MR. OSTERBUR: Well, all I have is a couple of signed statements that --

THE COURT: We discussed that last week and I told everybody, you and her, that anybody who was going to be presented as far as any information to be considered had to be here live to testify; otherwise, it violates the other parties' right to cross-examine. And her affidavit from last week wasn't any good and yours from this week aren't any better.

MR. OSTERBUR: That's all I have.

THE COURT: All right. Defendant rests.

For the taped record, the Court will state, first of all, that the Court judicially notices that the definition of fraud in this state is a statement made by

one party -- let me back up -- a factual statement made by one party with the intent that another party rely on that factual statement. Further, that the statement when made is not true and the party making the statement either knows it's not true or should have known that it's not true at the time mad. Further, that by reason of the statement made and the reliance on it, the party to whom it's made suffers damages, and then the law is to the effect that those damages are compensable because of the conduct of the party making the statement.

Plaintiff's Exhibit No. 1,

Mr. Osterbur's ad reads: "New motor. Almost new transmission. CV joints joints, brakes, etc." At the time Mr. Osterbur caused that statement to be published, he knew that this was not a new motor, it was a rebuilt motor because by his testimony he rebuilt it. He received the vehicle from a family member and made the

statement that it had an almost new transmission, although the transmission would the have had approximately 43,000 miles on it; and that it had nearly new brakes at a time when the brakes would have had 63,000 on them by the testimony that was presented here today. That's "should have known." You're not entitled to make statements like that without investigating them, even if you're relying on somebody else's information.

Now, as far as the reliance, Ms. Cole, first of all, testified that she relied on the statements made by Mr. Osterbur. And in the context of this, and advertised sale of a motor vehicle, the law says that she has the right to rely on things that are said, and if they're not true, then she's entitled to compensation.

There's a dispute about the cause of this particular problem; but zeroing in on the motor for the moment, I believe and find that the credible evidence

establishes that this motor failed because it was old, not because of something that Ms. Cole did to it. And I believe in assessing that credibility we can begin with the false statements that were made at the time that this purchase was first consummated.

Secondly, the witnesses who aren't here to verify Mr. Osterbur's statement that the motor was rebuilt and in a fine working order at the time Ms. Cole received it as well as the statements of a qualified mechanic who testified that the conditions that he observed were simply not consistent with the properly rebuilt motor and certainly nowhere near consistent with a new motor, which is what Mr. Osterbur advertised that he was selling to Ms. Cole.

Since the compensation that would be available at that point would either be the value of the car or what it cost to fix the problem, and motor alone

apparently would cost something in excess of $2,000 to fix, the nit would be the value of the vehicle itself, I specifically find that there was no accord and satisfaction in regard to this money paid by Mr. Osterbur the first time the car went bad because there was no agreement to accept that in total satisfaction of all of the problems wrong with this car, which was what it would take to reach an accord and satisfaction.

The docket entry is as follows:

Additional testimony heard. Finding is in favor of the plaintiff and against the defendant.

Judgement is entered in favor of the plaintiff and against the defendant in the amount of $1200 plus court costs. No written judgment order is required.

Ms. Cole, if you don't already have one, down here out of my line of sight is a set of pamphlets called "After Judgment is Entered in Small Claims Court." That

has the procedure in how to collect your judgment if you and Mr. Osterbur can't agree on how it's to be paid.

Mr. Osterbur, if you don't have one of those booklets, you might take one. It has the rights that are available to you in such a proceeding if one is needed.

Court is in recess.

(Which were all the proceedings

had in this cause on this date.)