Gaylord v. Hoar, 1895
| Decision Date | 01 November 1960 |
| Docket Number | No. 1895,1895 |
| Citation | 122 Vt. 143,165 A.2d 358 |
| Parties | Frank C. GAYLORD v. Redfield D. HOAR, d.b.a. Central Motors. |
| Court | Vermont Supreme Court |
Richard E. Davis, Barre, for plaintiff.
Paterson & Eldredge, Montpelier, for defendant.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
The action is conversion. Trial by jury resulted in a verdict for the plaintiff. The plaintiff entered into a contract with the defendant to purchase a 1960 Oldsmobile automobile on Oct. 10, 1959. The contract to purchase provided that the plaintiff was to receive a credit of $1,300 toward the purchase price of the new car for a trade-in of his 1957 DeSoto automobile, and he also paid to the defendant the sum of $50 at the time of signing the contract. Time of delivery of the new Oldsmobile to the plaintiff was to be made to the plaintiff 'as soon as possible.' No offer of delivery was made until January, 1960, due to a strike in the steel industry, which was after the commencement of this action. The contract between the parties does not specifically state any time at which the DeSoto car of the plaintiff was to be turned over to the defendant, or become the defendant's property. The contract does provide, referring to the DeSoto car, 'Mr. Gaylord agrees to keep his car in good condition.'
The only testimony in the case is that of the defendant, who was called as a witness by the plaintiff, and that of the wife of the defendant, an employee of Central Motors, improved as a witness by the defendant.
The evidence, taken in the light most favorable to the plaintiff, could have reasonably been found by a jury to be as hereafter stated: that the DeSoto car, at some time prior to Oct. 24, 1959, came into the possession of the defendant; that the defendant on Oct. 24, 1959 attempted to transfer ownership of this car to Central Motors by signing the plaintiff's name on the back of the registration certificate, with his own signature affixed below the name of the plaintiff. During the time that the defendant had the car in his possession he made numerous repairs to it, at his own expense. The defendant sold the DeSoto to a resident of Massachusetts on Nov. 13, 1959. During the period that the DeSoto was in the possession of the defendant, the plaintiff used two different cars belonging to the defendant, both of which were returned. The record is devoid of any evidence relative to the circumstances of the defendant obtaining possession of the DeSoto from the plaintiff, or of the circumstances relating to the plaintiff having the use of any automobiles belonging to the defendant. This action was brought by the plaintiff on Dec. 31, 1959. A jury trial resulted in a verdict for the plaintiff for compensatory damages of $1,500, plus 6 per cent. interest, and a verdict for exemplary damages of $200.
During the course of the trial the plaintiff offered in evidence the November issue of the National Automobile Dealers Association Guide, New England Edition. The testimony of the defendant was that this book contains average prices, wholesale, retail and loan, for various makes and models of used cars, for the time and the locality which the book purported to cover. This book, and others of similar nature, are used by automobile dealers in their business. It was the defendant's testimony that he 'liked' the book very much, as far as he has used it. He did not testify tht he had used it in fixing the value of the DeSoto, the object of the conversion here, nor did he testify as to the applicability of prices given in the book to this particular automobile. The N.A.D.A. book, above described, was admitted in evidence by the Court below, over the objections of the defendant, and it is to the admission of this exhibit that the defendant has briefed his first exception.
The exhibit, as offered, was underlined under the make, model and year of the DeSoto car here involved, and there was also an underlining of the values stated in the book for various items of optional equipment that could be added to the car. However, there is no testimony in the case, or other evidence, as to what items of optional equipment, if any, were on the DeSoto car which the plaintiff owned.
The book which was admitted in evidence is a publication which pertains to the average car of any particular make and model. They have little, if any, value in the appraisal of a particular automobile, the value of which may depend upon many facts and circumstances, such as the mileage and the mechanical condition. Irwin v. McGee, La. App., 93 So.2d 17. It is also obvious that the presence, or absence, of optional equipment is a circumstance which would affect the value of any specific automobile. In the case of Cincinnati St. Ry. Co. v. Waterman, 50 Ohio App. 380, 198 N.E. 494, 496, a witness was permitted to testify to the value of an automobile, it appearing that he relied to some extent upon a certain 'Blue Book', a publication similar to the exhibit here in question, but the witness in that case testified to a long experience in market values of cars, and from that experience he knew that the values set forth in the 'Blue Book' were correct. There is no such evidence in the case before us, nor did the defendant testify as to the value of the DeSoto automobile.
The measure of damages in an action of conversion is the value of the property at the time of the conversion. Eastman v. Jacobs, 104 Vt. 536, 538, 162 A. 382. In the absence of any evidence on the mechanical condition of the DeSoto car, its optional equipment, or that the values set forth in the offered exhibit would apply to the particular automobile for the conversion of which recovery here was sought, the trial court was in error in admitting the exhibit.
The fact that error has been shown is not enough, in itself, to secure a reversal. The defendant must also show that he was prejudiced thereby. Under the rule requiring prejudice to affirmatively appear, the test is whether in the circumstances of the particular case it sufficiently appears that the rights of the complaining party have been injuriously affected by the error. Parker v. Roberts et al., 99 Vt. 219, 225, 131 A. 21, 49 A.L.R. 1382; Berkley v. Burlington Cadillac Co., Inc., 97 Vt. 260, 269, 122 A. 665.
The jury verdict for compensatory damages in this case was in the amount of $1,500, plus interest. It is obvious that the jury must have used the valuation set forth in the N.A.D.A. book at arriving at their verdict figure, and it is so conceded by the plaintiff in his brief. The defendant was prejudiced by the error shown.
The second exception briefed by ...
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...of Frauds is raised in this Court for the first time and, not having been advanced below, is not for our consideration. Gaylord v. Hoar, 122 Vt. 143, 149, 165 A.2d 358. Secondly, defendant contends the wording of the exclusive sales agreement is such that an agreement signed by the buyer wa......
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