Haarberg v. Schneider

• Decision Date: 16 November 1962
• Docket Number: No. 35213,35213
• Parties: Herman HAARBERG, Appellee, v. Oliver SCHNEIDER, Appellant.
• Court: Nebraska Supreme Court

Page 796

117 N.W.2d 796

174 Neb. 334

Herman HAARBERG, Appellee, v. Oliver SCHNEIDER, Appellant.

No. 35213.

Supreme Court of Nebraska.

Nov. 16, 1962.

William W. Lyons, McCook, for appellant.

Daniel E. Owens, Benkelman, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

This is an action brought by Herman Haarberg against Oliver Schneider for damages sustained as a result of false representations made by Schneider to Haarberg in selling an automobile to Haarberg. The jury returned a verdict for the plaintiff in the amount of $1,083.34 and defendant has appealed from the judgment entered thereon.

The evidence shows that Haarberg is a farmer, 49 years of age, who has resided in Chase County all his life. Schneider is a new and used car dealer who has had a place of business in McCook, Nebraska, for the past 25 years. On September 9, 1960, Haarberg purchased a 1960 Chevrolet 4-door Corvair automobile from Schneider for which he paid $2,502.50, $950 in cash and the balance by a trade-in allowance of $1,552.50 on his 1955 Oldsmobile automobile.

Schneider had obtained the Corvair from Lester Buzzell, an automobile dealer in Cambridge, Nebraska, in June 1960. Buzzell testified that at the time he transferred the Corvair to Schneider, it had been driven more than 7,000 miles and the speedometer so showed. When Schneider transferred the Corvair to Haarberg the speedometer showed that it had been driven 800 miles, a manufacturer's suggested retail list price was attached to a rear window, and the invoice given to Haarberg showed it was a 'new' car sold on an 'as is' basis. Schneider's wife testified that she made out the invoice and that she inserted 'NEW' in the 'New or Used' car designation by mistake. Schneider testified that when he obtained the automobile from Buzzell the speedometer was defective. He did not remember the mileage shown at that time. After its repair the mileage showed zero. Schneider and members of his family had driven the automobile during the period of Schneider's possession, which accounts for the 800 miles showing on the speedometer at the time of its sale to Haarberg.

Haarberg and his son Ronald examined the Corvair a few times before the sale was made. Both testified that Schneider represented the Corvair as a new automobile and that the speedometer correctly showed the mileage the Corvair had been driven so far as he knew. They testified also that Schneider stated that the 'break-in' oil was still in the Corvair's motor and that it should have its 1,000 mile check-up when the speedometer showed 1,000 miles. Haarberg testified that he believed the representations made and relied on them when he purchased the car. Haarberg and Ronald both testified that while they were driving the Corvair home, following its purchase, the motor 'cut-out' a few times and the speedometer stuck. They complained to Schneider who told them that the General Motors Company warranty was in effect and that they should take the matter up with that company. This they did and were informed that the one-year warranty had expired and that the General Motors Company had no obligation in the matter. Ronald Haarberg testified that the valve lifters stuck and the heater went out in November 1960 when he was driving the car in Brighton, Colorado. In late December the motor stuck or was burned out, and the car has not been used since. Herman Haarberg testified that the Corvair had an actual value of $1,400 to $1,500 when he purchased it. Ronald Haarberg testified that its value at that time was from $1,000 to $1,200. There is no evidence in the record of the value of the Corvair at the time of its sale to Herman Haarberg if it had been as represented.

Schneider testified that he knew the Corvair had been used as a demonstrator, that he had the speedometer repaired, and that it showed no mileage when it was replaced in the car. He said that he never told Haarberg that the car was a new car and that he made no statement as to the number of miles the Corvair had been run. He admits that the manufacturer's suggested retail list price was on it just as it was when he received the automobile from Buzzell. Schneider's contention is that the deal was made at arms-length, that Haarberg examined the car and drove it, and that Haarberg knew that it was a used car.

We think a jury question was presented. The invoice delivered to Haarberg showed it to be a new car, and the price was the new car list price. The speedometer indicated that the Corvair had been driven only 300 miles, when Schneider knew that it had been driven 7,000 miles in addition thereto. He permitted Haarberg to assume that the car was new by leaving the manufacturer's suggested retail list price on it without explanation. These implied representations, together with the testimony of Herman and Ronald Haarberg, were sufficient to sustain the verdict of the jury. Trebelhorn v. Bartlett, 154 Neb. 113, 47 N.W.2d 374; Herlan v. Bleck, 148 Neb. 816, 29 N.W.2d 636; Dargue v. Chaput, 166 Neb. 69, 88 N.W.2d 148. No contention is made that the trial court did not properly instruct the jury on the elements of fraud and misrepresentation essential to establish a cause of action.

The defendant assigns as an error the giving of instruction No. 11 which states in part: 'In the event you find for the plaintiff the measure of plaintiff's damages in this case is the difference between the price paid by the plaintiff...