Gray v. Wikstrom Motors, Inc.

• Decision Date: 06 August 1942
• Docket Number: 28655.
• Parties: GRAY v. WIKSTROM MOTORS, Inc., et al.
• Court: Washington Supreme Court

128 P.2d 490

14 Wn.2d 448

GRAY v. WIKSTROM MOTORS, Inc., et al.

No. 28655.

Supreme Court of Washington

August 6, 1942

Department 2.

Action by Dr. G. Gray against the Wikstrom Motors, Inc., and another for fraud in sale of an automobile to plaintiff. From a judgment of dismissal, plaintiff appeals.

Reversed and new trial ordered.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

J. P Tonkoff, of Yakima, for appellant.

Lincoln E. Shropshire, of Yakima, for respondents.

STEINERT Justice.

Plaintiff brought suit to recover damages for fraud alleged to have been perpetrated upon him by defendnats in the sale to him of an automobile. At the conclusion of plaintiff's evidence, the court granted defendants' motion for nonsuit and thereafter entered judgment of dismissal. Plaintiff has appealed.

The question presented for our decision is whether the evidence was sufficient to take the case to the jury. In determining that question, we must proceed upon the well-settled rule that a challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of the evidence of the party against whom such challenge or motion is made and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted in the light most favorable to the party toward whom the challenge is directed and most strongly against the challenging party. Lindberg v. Steele, 5 Wash.2d 54, 104 P.2d 940; Scholz v Leuer, 7 Wash.2d 76, 109 P.2d 294; Graham v. Police & Firemen's Insurance Ass'n, 10 Wash.2d 288, 116 P.2d 352; Hill v. Parker, Wash., 122 P.2d 476. Interpreted according to this rule, the evidence in the case may be stated as follows:

Appellant, Dr. G. Gray, is an osteopathic physician residing in Yakima, Washington. Respondent Wikstrom Motors, Inc., is a corporation engaged in selling various types of Buick automobiles in that city. Respondent Phil Crawford is an automobile salesman and has been employed as such by the respondent corporation since 1931.

In the latter part of June, or the early part of July, 1940, respondent Crawford called at appellant's home and inquired of him whether be would be interested in purchasing a new Buick automobile. At that time appellant owned a Hudson car, which had been run only about forty-seven hundred miles and was in first-class condition. Appellant informed Crawford that he was not in the market for a new car unless he could obtain in return one thousand dollars for his Hudson car. Crawford suggested that they might be able to make a deal on that basis if appellant should purchase one of the larger, or higher-priced, Buick cars, and stated that he would take the matter up with Mr. Wikstrom, who was the president and manager of the respondent corporation.

Shortly thereafter, Crawford called again at appellant's home, bringing with him a large, illustrated catalogue descriptive of the various types, or models, of Buick cars. The catalogue, which appears as an exhibit in the case, showed nine different styles or models, varying in size, color and weight, but it did not show their respective selling prices. The larger, or higher-priced, models were designated as series 90, and the smaller models were described as series 80. Appellant knew nothing about the price of any of them. In the conversation which then took place, Crawford directed appellant's attention to the picture of a car described as Model 81, which was one of the smaller models, and stated that the retail price thereof, including certain specified accessories and tax charges, but with a different kind of tire mount, was $2,274.57. Several members of appellant's family were present and took part in the conversation. On the next day, Crawford returned again and, in the negotiations which followed, agreed to allow appellant one thousand dollars for his Hudson car as a full down payment on a Model 81 Buick car, as previously described by reference to the catalogue, and to accept the balance of the purchase price in twenty-four equal monthly installments. During none of these negotiations was any car exhibited to, or inspected by, the appellant, and in fact the respondent did not have any of the 81 models in its possession in Yakima. It was therefore necessary for the parties to go to Seattle in order that appellant might examine the car which he was to receive in the transaction.

On the following day, July 25, 1940, Crawford took appellant and his wife and son, together with two of their friends, to Seattle to see the new car, which was on the floor of the display room at the Seattle Buick agency. During the course of the trip, Crawford reiterated to his guests his former statement that appellant was to be allowed one thousand dollars for his Hudson car as a full down payment on the Buick. Arriving in Seattle, the party went to the Seattle agency where the new car was kept. After inspection of the car, followed by some further negotiations concerning it, appellant concluded to make the deal. Mr. Wikstrom knew all about the transaction which Crawford was negotiating with appellant.

Crawford thereupon had appellant sign an order for the purchase of 'one Buick 81 automobile.' The order specified the price of the car as $1,726.57, instead of $2,274.57 as formerly represented by Crawford, and the trade-in value of the Hudson car was given as $452, instead of $1,000 as previously agreed. Noting these lessened values as they appeared upon the order, appellant asked Crawford for an explanation. Crawford thereupon explained that the sale of the new car was being financed by his company through GMAC (General Motors Acceptance Corporation) which required a discount of $548 on the Buick car, and that this in turn would necessitate the same discount on the Hudson car. Crawford further explained that an equal discount taken upon both cars would not affect the agreed allowance of one thousand dollars to appellant for the Hudson car. The explanation was accepted by appellant, who was under the belief all this time that the standard selling price of the Buick car was $2,274.57, as Crawford had previously represented it to be, and it is apparent that if that were the true selling price appellant would still have been receiving the full allowance of one thousand dollars for his car, despite the reduced values specified in the selling order. At any rate, the negotiations between the parties were then and there concluded upon that understanding, whereupon appellant took delivery of the new Buick car and drove it to his home in Yakima.

Two days later, July 27, 1940, Crawford called at appellant's home and had him sign, in duplicate, a conditional sale contract covering the Buick car. That instrument specified the total selling price of the car, on the installment plan, as $1,827.49 and allowed a credit of $452 for the Hudson car. Both copies of the contract were retained by Crawford, and when appellant asked him for one of the copies he was told that GMAC would send him one later. Appellant did not receive a copy of the contract, however, until about the middle of August. When offered in evidence at the trial, the contract contained a schedule of payments to be made by the purchaser which provided that an installment of $275.57 was payable on August 5, 1940, and the balance in equal monthly installments of $45.83 beginning September 6, 1940. When appellant signed the contract on July 27th, however, it did not contain the item of $275.57.

Shortly after the delivery of the Buick car on July 25th, appellant's wife called on an insurance agency in Yakima for the purpose of transferring the policy of insurance covering the Hudson car to the new Buick. Mrs. Gray did not have sufficient information regarding the description and price of the new car, so the insurance agent telephoned to the respondent corporation and obtained the necessary details. He was advised, among other things, that the actual cost of the car and equipment to the purchaser was $1,726. This fact, however, was not communicated to Mrs. Gray at that time. The new policy, which was sent from Berkeley, California, was not delivered to appellant until near the end of August.

During the latter part of that same month, a representative of GMAC made a demand upon appellant for the payment of $275.57 claimed to be due on August 5th. Appellant denied that he owed the amount or that he...