Garrett v. Neitzel, 5309

• Court: United States State Supreme Court of Idaho
• Writing for the Court: LEE, J.
• Citation: 285 P. 472,48 Idaho 727
• Decision Date: 08 February 1930
• Docket Number: 5309
• Parties: MRS. F. O. GARRETT, Respondent, v. HERMAN R. NEITZEL, FRANCIS H. NEITZEL and JOHN M. NEITZEL, Doing Business Under the Firm Name and Style of BANNOCK MOTOR SALES COMPANY, and H. R. NEITZEL, Appellants

285 P. 472

48 Idaho 727

MRS. F. O. GARRETT, Respondent,
v.
HERMAN R. NEITZEL, FRANCIS H. NEITZEL and JOHN M. NEITZEL, Doing Business Under the Firm Name and Style of BANNOCK MOTOR SALES COMPANY, and H. R. NEITZEL, Appellants

No. 5309

Supreme Court of Idaho

February 8, 1930

SALES-FRAUD-WAIVER OF-EVIDENCE-VALUE OF PROPERTY-SPECIAL KNOWLEDGE-PRIMA FACIE EVIDENCE-ABSENCE OF EXPLANATION-PRESUMPTION.

1. In action for replevin of automobile, whether buyer waived alleged fraud in representing that used automobile was new automobile, by giving renewal notes and securing extensions of time after discovery of fraud on promise of sellers to make satisfactory adjustment, held for jury, "waiver" being matter of intention.

2. In absence of intent to contrary, buyer may affirm contract of sale and sue for damages arising from fraud of sellers.

3. Where buyer had previously owned six or seven used automobiles, buyer's testimony as to value of automobile in action of replevin against sellers, held competent.

4. Owner of property is a competent witness of its value.

5. In buyer's action for replevin of automobile which sellers had wrongfully repossessed when buyer refused to pay balance of purchase price due on discovering automobile was used, exclusion of evidence offered to counteract inference that seller had purposely concealed fraud from his agent, held not error where seller was present at trial and did not attempt to clear himself from such inference by testifying.

6. When evidence tends to prove a material fact imposing liability on party and he can produce evidence rebutting case [48 Idaho 728] made against him, if it is not founded on fact, but refuses to do so, it must be presumed that evidence, if produced, would operate to his prejudice.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action in replevin to recover possession of an automobile. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

William Healy, for Appellants.

Renewal of an instrument with knowledge of fraud in procurement of the original operates as a waiver of the fraud. (Smith v. Smith, 4 Idaho 1, 35 P. 697; Pioneer Bank & Trust Co. v. MacNab, 41 Idaho 146, 238 P. 295; 8 C. J. 444.)

An estoppel may arise by accepting the benefits of a contract. (21 C. J. 1209, 1210, 1238--1240; Lane v. Pacific etc. Ry. Co., 8 Idaho 230, 67 P. 656.)

Owner of an automobile is not, per se, qualified to give an opinion as to its depreciation in value arising out of facts unknown to the witness. (Wolff v. Hartford Fire Ins. Co., 204 Mo.App. 491, 223 S.W. 810; Roy v. Clark, (Mont.) 214 P. 232.) Where testimony is introduced against a party which tends to raise an inference of some improper motive or conduct, it is relevant for him to give an explanation otherwise clearly inadmissible. (Jones on Ev., 2d ed., par. 171.)

E. P. Barnes, for Respondent.

The general rule, that to qualify a witness to testify as to market value, a proper foundation must be laid showing the witness to have knowledge upon the subject, does not apply to a party who is testifying as to the value of property which he owns. (Rankin v. Caldwell, 15 Idaho 625, 99 P. 108; Kellar v. Sproat, 35 Idaho 273, 205 P. 894; Wicklund v. Allraum, 122 Wash. 546, 211 P. 760.)

The question of waiver is one of fact and is a question of the intention of the party against whom the waiver is urged. (27 C. J., "Fraud," "Waiver," par. 135, pp. 22--24; Bean v. Bickley, 187 Iowa 689, 174 N.W. 675; Van Natta v. Snyder, 98 Kan. 102, 157 P. 432, L. R. A. 1918A, 102; Bushey v. Coffman, 109 Kan. 652, 201 P. 1103; Bushey v. Coffman, 103 Kan. 209, 173 P. 341.)

The signing of a renewal note and the continuation of payments on the contract do not work a waiver of the fraud nor operate as an estoppel to claim the legal remedy of damages for deceit. (Bean v. Bickley, supra; Bushey v. Coffman, supra; Kennedy v. Bender, 104 Tex. 149, 135 S.W. 524; Texas Harvester Co. v. Wilson-Whaley Co., (Tex. Civ. App.) 210 S.W. 574; Graham-Jones Motor Co. v. Nutter, 77 Colo. 74, 234 P. 1063.)

LEE, J. Givens, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION

[48 Idaho 729] LEE, J.

Action in replevin to recover possession of an automobile alleged to have been wrongfully repossessed by defendant vendors. The defendants, H. R. Neitzel, Francis H. Neitzel and John M. Neitzel, were Chrysler dealers at Boise under the firm name and style of Bannock Motor Sales Co. Mrs. F. O. Garrett, plaintiff, charged in her complaint that, on or about September 5, 1926, she purchased of the company the automobile involved here, believing the same to be a new car as represented by the vendors, whereas, in fact, it was a second-hand car that had originally been sold one H. D. Park, and later by him traded back to the company for another model. She alleged that the second-hand nature of the car had been fraudulently [48 Idaho 730] concealed from her; that its actual value when delivered to her was the sum of $ 1100 as opposed to the $ 2,066.60 she had contracted to pay; that she had paid...