Great Western Motors v. Hibbard

• Decision Date: 15 September 1920
• Docket Number: 15922.
• Citation: 112 Wash. 541,192 P. 958
• Court: Washington Supreme Court
• Parties: GREAT WESTERN MOTORS, Inc., v. HIBBARD.

192 P. 958

112 Wash. 541

GREAT WESTERN MOTORS, Inc., v. HIBBARD.

No. 15922.

Supreme Court of Washington

September 15, 1920

Department 1.

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by the Great Western Motors, Incorporated, against George J Hibbard, with cross-action by defendant. Judgment for defendant in the cross-action, a new trial was denied, and plaintiff appeals. Reversed and remanded for new trial.

Dan Earle, of Seattle, for appellant.

Flick &amp Paul, of Seattle, for respondent.

MITCHELL J.

On July 29, 1918, the plaintiff sold a Paige automobile to the defendant under a conditional bill of sale contract. After making several payments the defendant refused to make other payments, whereupon the plaintiff commenced this action in replevin, and took the automobile into its possession. The material allegations of the complaint were denied by answer, and by way of further defense and cross-complaint the defendant alleged he bought the car upon the representations of the plaintiff that it was new, a 1918 model, and in excellent mechanical condition; that the representations were made to induce him to purchase; that the representations were false and fraudulent, in that it was a 1917 model, that it was a secondhand car, and that its mechanical condition was poor, requiring the expenditure of approximately $220 to put it in proper order. The cross-complaint further alleged the taking of the car by plaintiff at the commencement of the suit, and that payments already made, together with the cost of repairs, amounted to $1,493, in which sum judgment against the plaintiff was demanded. The reply denied the allegations of the cross-complaint, and further alleged the conditional bill of sale contract failure to pay, forfeiture, and retaking the automobile by a writ of replevin at the commencement of the action. The trial resulted in a verdict and judgment in favor of the defendant in the sum of $1,493. A motion for a new trial having been denied, the plaintiff has appealed.

First, it is claimed the court erroneously admitted certain evidence given by one Daverso on behalf of the respondent. He testified that he purchased this same automobile from the appellant prior to the date of the sale to respondent. He was then asked what the appellant told him as to the model of the car, and whether or not it was new. An objection that it was irrelevant and immaterial and introduced a new issue was overruled by the court. The witness answered he was told it was a new 1918 car. It appears that this evidence was admitted for the purpose of showing fraud and deceit; that is, the intent with which respondent claimed similar representations were made to him. This was respondent's theory through the whole case; and in support of that theory and of the evidence referred to, relying upon Stack v. Nolte, 29 Wash. 188, 69 P. 753, Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 P. 1119, 1 L. R. A. (N. S.) 1075, 107 Am. St. Rep. 823, and Ryan v. Dowell, 86 Wash. 76, 149 P. 343, it is contended for the respondent:

'First, that where motive and intent or knowledge are vital elements in the proof in an action, other transactions showing such knowledge and intent or similar motive are permissible; and second, that, where there is a scheme to defraud, the practice of such scheme in other instances would be usable to show the possible use of the scheme in the instance at bar.'

There is evidence in the case to show that a new car of the 1918 model was worth several hundred dollars more than a new car of the 1917 model, at the date of the sale to the respondent. The car that was sold was manufactured in 1917. This is not denied by the appellant, who claims the Paige car is not designated by the year of its manufacture, but by a name such as Linwood, Stratford, etc., and that it did not represent to the respondent that the car sold was a 1918 model, but, on the contrary, told him it had been on hand all the winter prior to the sale.

But, what difference it could make to the respondent as to whether or not appellant knew better, or intended to deceive, it is difficult to perceive. Had the appellant through its agent candidly mistaken the year of the manufacture of the car, and that it was unused, and nevertheless misled the respondent in those respects in consummating the sale, under circumstances entitling him to recover, the resulting damage to him would have been the same as that complained of in this suit.

The case of Hanson v. Tompkins, 2 Wash. 508, 27 P. 73, was a suit upon a promissory note. The answer admitted the execution of the note, and alleged want of consideration; that plaintiff sold defendants a tract of land, and that the note was given as part of the purchase price thereof; 'that plaintiff, intending to cheat the defendant and codefendant, falsely and fraudulently represented to them that said lot 2 contained 36 1/2 acres, when in truth and in fact it contained but 26 1/2 acres; and that, wholly and solely relying on the said fraudulent and false representations of plaintiff, defendant and codefendant * * * signed the said note.' The trial court instructed the jury that if they did find a discrepancy of 10 acres in the tract, 'you must still find a verdict for the plaintiff, unless you further find by a preponderance of the evidence that the plaintiff knew, at the time he made such representations, that the same were false, and made them with intent thereby to deceive the defendants, if the mistake (if you find there was a mistake) was a mutual one, and innocently made by the plaintiff, he cannot be charged therefor in this action.' Concerning the instruction, this court said:

'This instruction was plainly erroneous. If the defendants relied upon the representations of the plaintiff, and were led to believe by such representations that lot 2 contained 36 1/2 acres, when in fact it only contained 26 1/2 acres, and were induced by such representations to purchase said lot as a lot of 36 1/2 acres, it makes no difference whether plaintiff knew such representations to be false or not, he is liable. If he knew the lot did not contain 36 1/2 acres, and represented to defendants that it did, he would be guilty of fraud and deceit; but if he did not know it, and believed that the representations he made were true, and defendants, acting upon such representations,

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