Batchelder v. Birchard Motors, Inc., 1294

• Citation: 120 Vt. 429,144 A.2d 298
• Decision Date: 05 March 1958
• Docket Number: No. 1294,1294
• Court: Vermont Supreme Court
• Parties: James W. BATCHELDER v. BIRCHARD MOTORS, INC.

Page 298

144 A.2d 298

120 Vt. 429

James W. BATCHELDER v. BIRCHARD MOTORS, INC.

No. 1294.

Supreme Court of Vermont.

March 5, 1958.

On Motion for Reargument July 31, 1958.

R. Lawlor Cooper, Springfield, for plaintiff.

Parker & Ainsworth, Springfield, for defendant.

Before CLEARY, C. J., ADAMS, HULBURD and HOLDEN, JJ., and BARNEY, Superior Judge.

BARNEY, Superior Judge.

This case is before us on exceptions to the granting of defendant's motion for a directed verdict by the trial court at the close of all of the evidence. On review of this question we are required to view the evidence in the light most favorable to the plaintiff. Comstock v. Shannon, 116 Vt. 245, 73 A.2d 111; Appleyard Motor Transportation Co. v. Ray Co., 115 Vt. 519, 66 A.2d 10. So viewed, the following material facts appear:

On September 1, 1956, the plaintiff, a mechanical engineer of thirty-two years experience, by letter inquired of the defendant concerning the purchase of a new Buick or Oldsmobile and concerning the trade-in allowance for the 1954 Oldsmobile offered in trade. Subsequently Mr. Doughty, sales manager for defendant, and the plaintiff conversed by telephone in connection with the proposed sale.

As a result an order was placed with the Buick Motor Division of General Motors by the defendant for a car to be assembled for the plaintiff as expressed in a letter to the plaintiff dated September 7, 1956, reading as follows:

'Dear Mr. Batchelder:

'Your 1956 four door Special, dark grey, has been ordered. This car includes Black Tires and Tubes, Inside Tilt Mirror, Outside Rear View Mirror, Power Steering, Back-Up lights, Courtesy Light, Synchro Mesh Transmission, Green Nylon Seat Covers, Undercoat, Liquid Glaze, Heater and Defroster, Winshield Washer, Directional Signals, Oil Filter, and Oversized Tires.

'The net cost to you will be $1027.50. We would appreciate your check for $100 as a deposit on the car. Securing a deposit is the usual procedure in new car sales.

'Sincerely,

S/ William R. Doughty

William R. Doughty

Sales Manager'

The $100 deposit called for was duly sent by the plaintiff and received by the defendant.

On October 6, 1956, after notification by the defendant, plaintiff took delivery of the Buick automobile in question at Pittsfield, Massachusetts, signing the new car order therefor and a bill of sale to the defendant for his Oldsmobile. The plaintiff acknowledged that the car he received was equipped as stated in the letter of September 7, 1956, quoted above. Thereafter plaintiff expressed dissatisfaction with the performance and equipment of the Buick and on December 20, 1956, it was returned to defendant's place of business for servicing. At that time the Buick had 2,186 miles on the odometer. The defendant made no charge for the servicing done at that time and provided plaintiff with a car for his use during the interval. Upon its return the car's performance continued to be unsatisfactory to the plaintiff.

On February 18, 1957, when an agent of defendant was in Vermont for the purpose of having plaintiff's car taken to Pittsfield, Massachusetts, for examination by a factory representative of the Buick Motor Division, plaintiff had the agent served with process commencing this suit. That process sounds in tort, alleging that the plaintiff was induced to enter a contract for the purchase of this Buick automobile by the false and fraudulent misrepresentations of the defendant. The writ sets forth the representations allegedly made by the defendant as follows:

'* * * then and there falsely and fraudulently represented to the plaintiff that the said automobile was a good one, was new in all its parts and equipment, would run efficiently and well, and would travel at least eighteen miles on a gallon of gasoline * * *'.

A search of the transcript reveals that the only evidence in the case as to representations made to the plaintiff are to be found in the plaintiff's own testimony and are as follows:

'Q. Do you now know what position Mr. Doughty occupies with Birchard Motor Company? A. Sales Manager.

'Q. And did you talk or communicate with Mr. Doughty about this gasoline mileage factor? A. Definitely.

'Q. And did he give you any representations as to what the car you bought produces? A. He did.

'Q. What was that representation? A. He said it would give me as good mileage as the car I turned in, or better.

'Q. Had you stated to him what your car that you turned in to him obtained? A. Yes, I had.

'Q. And you gave him a figure of miles per gallon? A. I did.

'Q. Of what? A. 18 miles or better.'

Further:

'Q. With whom did you have your negotiations at the Birchard's, of the aforesaid car? A. With the aforesaid William Doughty.

'Q. During the negotiations leading up to the sale and purchase of this car, did Mr. Doughty make some representations to you about the mechanical condition of this car? A. Yes.

'Q. That was in October, 1956? A. That would be September.

'Q. Prior to your purchase? A. That was, Mr. Doughty's representations were prior to the date I gave them an order.

'Q. What condition did he represent to you, mechanically speaking, that this car was in? A. It would be new and perfect in every respect.

'Q. Since your taking delivery of the car, has the car proved to be new and perfect in every respect? A. It was new but it was not mechanically perfect.'

Further:

'Q. Did Mr. Doughty, on that date October 6, make any representation to you about gas mileage on this Buick Special? A. Yes.

'Q. What was the representation that Mr. Doughty made that day? A. He said with a standard transmission, which is the same as this syncromesh, that they usually got at least 18 miles to the gallon, and, with some drivers, more, and I had no cause whatsoever on that point.

'Q. Was that gasoline consumption a factor which in any way influenced you in the purchase of that automobile? A. Yes, Sir.'

No other evidence of representations made to the plaintiff was called to our attention in the briefs or in oral argument.

To support an action for fraud or deceit the representations must be of existing facts relating to the subject matter of the contract, affecting its essence and substance, not matters of judgment or opinion, nor of facts that will exist, nor of promises. The representations must be made by the seller to induce the buyer to enter the contract; they must be false and at the time known by the seller to be false; or made by the seller as of his own knowledge without his in fact knowing them to be true; they must not be open to the knowledge of or known by the buyer and must be relied upon by him in entering the contract to his damage. Hunt v. Lewis, 87 Vt. 528, 530, 90 A. 578, Ann.Cas.1916C, 170; Belka v. Allen, 82 Vt. 456, 462, 74 A. 91; Corey v. Boynton, 82 Vt. 257, 72 A. 987; Shanks v. Whitney, 66 Vt. 405, 410, 29 A. 367.

The question before us is whether or not in the circumstances disclosed by the evidence here these representations, or any of them, should have been for the jury. As a general rule the question as to whether a particular statement is one of fact or opinion is for the jury. However, this is not always so, for cases frequently arise which are so plainly of the one class or the other that they can be disposed of by the court without the aid of the jury. Belka v. Allen, supra. In that case Justice Powers goes on to say at page 462 of 82 Vt., at page 93 of 74 A.:

'The character and relation of the parties, their respective intelligence, the subject-matter of the bargain, and all the circumstances, must be considered. So each case must necessarily depend in large measure upon its own facts. A statement which is in form only an expression of opinion may in certain circumstances amount to an assertion of fact; and, conversely, a statement which is in form an assertion of fact may in certain circumstances amount to an expression of opinion merely. Statements of quantity, quality, and value are usually held to be expressions of opinion, and therefore not...