Bragdon v. Chase
| Decision Date | 14 August 1953 |
| Citation | 99 A.2d 308,149 Me. 146 |
| Parties | BRAGDON v. CHASE. |
| Court | Maine Supreme Court |
B. M. Siciliano, Dexter, for plaintiff.
C. W. & H. M. Hayes, Dover-Foxcroft, for defendant.
Before MERRILL, C. J., and THAXTER, FELLOWS, NULTY, WILLIAMSON and TIRRELL, JJ.
This is an action of tort for deceit brought to recover damages for an alleged misrepresentation of the model year of a new and unused two-ton Ford truck sold by the defendant to the plaintiff on December 7, 1949.
The defendant filed a plea of general issue and the case comes before us on exceptions by the plaintiff to the granting of a motion for a directed verdict for the defendant at the September 1952 Term of the Penobscot County Superior Court. The bill of exceptions presents the single issue of law arising out of the allegation in the bill that plaintiff is aggrieved by the directed verdict ordered by the trial court. The facts are as follows:
The defendant in December, 1949, was engaged in the automobile sales business and was selling Ford trucks. The plaintiff, who was a pulp buyer and contractor, approached him relative to the purchase of a new two-ton Ford truck, stating that if he could get a new two-ton 1950 Ford truck he would at once trade. According to the plaintiff the defendant said he had a new two-ton 1950 Ford truck that would meet the specifications of the plaintiff, whereupon the defendant examined, or caused to be examined, plaintiff's truck and while the plaintiff did not see the new truck which he bought from the defendant, from the evidence and the conditional sale agreement admitted in evidence, it is apparent that the parties, on December 7, 1949, traded trucks. According to the record, the defendant received plaintiff's truck in part payment for the new and unused two-ton Ford truck. Plaintiff then testified that about five months later he discovered that the truck was not a 1950 truck--but a 1949 truck--which information he received from a sales agent of the Ford Motor Company. It appears from the record that there was no change in model between Ford trucks manufactured in 1949 and 1950 by the Ford Motor Company. They were in all respects physically identical and an examination of the serial numbers would not indicate the year of manufacture. It also appears that for registration identification purposes the Ford Motor Company suggested to its dealers that sales of new and unused trucks purchased during 1949 from its dealers and completed prior to January 1, 1950, should be billed as 1949 models and that if sold thereafter the trucks should be billed as 1950 models. The evidence clearly shows that the plaintiff, after receiving information that the truck which he had purchased from the defendant was a 1949 model, kept and used it until November 1951 when he traded it and received an allowance based on the fact that the truck was a 1949 model and that the allowance so received was approximately $200 less than the plaintiff would have received had the truck been a 1950 model. The plaintiff alleges in his declaration that the loss of approximately $200 was occasioned by the misrepresentation of the defendant that the truck sold by the defendant to the plaintiff was a 1950 model and that is the basis of his action for deceit. Plaintiff was asked in cross-examination what difference there was between a 1949 truck and a 1950 truck at the time he learned that the truck was a 1949 truck instead of a 1950 truck and his answer was 'discontinuation day'. He was further asked if he learned of any other difference between the 1949 and the 1950 truck and his answer was 'I don't think there was any.' Questioned further, he testified that there was no difference except the year and the retail value. It also appears that plaintiff made no attempt at the time of the purchase of the new truck by questioning or otherwise to determine whether the new truck so purchased by him which he had not seen was anything other than a 1950 truck although at the date of purchase, to wit, December 7, 1949, it is very apparent that the new truck could not have been manufactured in 1950. The plaintiff also produced a witness who qualified as having been connected with the automobile business for many years and who assisted in appraising the truck which plaintiff traded towards the purchase of the new truck from the defendant. The witness testified that the only way he knew that this truck was a 1949 truck was because it was bought in December of 1949 and he also testified under further questioning that if there were on the floor of the sales room on January 1, 1950, a 1949 and a 1950 model there would be no difference in the price and there would be no difference in their fair market value.
On this testimony the Court directed a verdict for the defendant and this court is now asked to sustain the plaintiff's exceptions.
We have many times within recent years set forth the rules with respect to the propriety of granting a nonsuit or a directed verdict and without quoting at length from our former opinions we again state the rule set out in Williams v. Bisson, 142 Me. 83, 85, 46 A.2d 708, 709:
'A nonsuit, or a directed verdict for the defendant, should be ordered on proper motion whenever all the evidence viewed most favorably to the plaintiff would not support a verdict in his favor, Lander v. Sears, Roebuck & Co., , 44 A.2d 886, and cases cited therein, * * *.'
See also Kimball v. Cummings, 144 Me. 331, 68 A.2d 625, 627, quoting from Barrett v. Greenall, 139 Me. 75, 80, 27 A.2d 599, 601. We said in Shine v. Dodge, 130 Me. 440, 442, 157 A. 318, 319:
* * *
In American Jurisprudence, Sec. 206, under the heading Fraud and Deceit, B....
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