Hogan v. Mason Motor Co.

• Decision Date: 27 May 1930
• Citation: 133 Or. 14,288 P. 200
• Parties: HOGAN v. MASON MOTOR CO.
• Court: Oregon Supreme Court

288 P. 200

133 Or. 14

HOGAN v. MASON MOTOR CO.

Supreme Court of Oregon

May 27, 1930

In Banc.

Appeal from Circuit Court, Jackson County; C. M. Thomas, Judge.

Action by M. N. Hogan against the Mason Motor Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

This is an action for fraud and deceit, grounded upon the defendant's alleged false, fraudulent, and deceitful pretenses and representations, designedly made to plaintiff by the defendant corporation, through A. R. Mason, its president, for the purpose of selling to the plaintiff a used, damaged, Durant sport touring car, as a new car, of the manufacture of the current year, as evidenced by the conditional sales contract attached to and made a part of the complaint. From a judgment for $460, recovered by plaintiff as damages growing out of the sale and purchase of this automobile, the defendant has appealed.

G. M Roberts, of Medford, for appellant.

Keyes &amp Page and Fred A. Williams, all of Salem, for respondent.

BROWN J.

The history of the car forming the subject-matter of this litigation is an eventful one. It is asserted by plaintiff and not disputed by defendant, that in June, 1923, defendant sold and delivered to one Robert Gordon, of Grants Pass, Or one Durant sport touring car, motor number 109,860, model A-22. Gordon took possession of the car and operated it over the highways of the state until about October 2, 1923, when he collided with another car, to the serious damage of his own motor vehicle, including damage to the motor, the springing of the frame, and many minor injuries. The crippled Durant was taken to the Smith Garage at Grants Pass, in which the defendant was at that time financially interested. There it remained in storage until the month of April, 1924, and, during this time, was repaired. The car was then traded back to defendant, and the defendant, acting through its president, caused it to be transferred to defendant's garage at Medford. Here it was renovated, two new tires were put on, and, under the direction of the president of the defendant company, the speedometer was designedly turned back from 4,000 or 4,500 to 256 miles. The car was equipped with a dealer's license, and it was then placed upon the sales floor of the defendant's garage with the new cars.

The defendant, through its president and principal owner, in order to induce the plaintiff to purchase the car, represented to him that it was a new car, of the 1924 model. It was further represented that, on account of its excellence, the car had been used for a brief period for demonstration purposes, and this statement was apparently borne out by the mileage of the car as indicated by the speedometer. The plaintiff entered into a contract of purchase of the car. When he discovered that he had been induced by fraudulent representations to purchase the car, he chose to stand on his contract and sue for damages for the tort committed by the president of the defendant company in persuading him by means of fraud to make the purchase.

The plaintiff has alleged, and has established by some competent evidence, that the defendant, through its president, made false representations to him of material facts involving the purchase of the car. He has established that he believed the false representations to be true, and that his reliance thereon was an act of ordinary prudence. Furthermore, he has proved that these false representations influenced him to purchase the car, and that, as a result thereof, he sustained substantial damages.

The defendant assigns error of the court in denying its motion for a nonsuit, and in denying its motion for a directed verdict in favor of defendant made at the close of plaintiff's case in rebuttal.

This court has held time and again that a motion for nonsuit is in the nature of a demurrer to the evidence, and that such a motion admits not only all that the evidence proves, but all that it tends to prove. See Collins v United Brokers' Co., 99 Or. 556, 194 P. 458; Carty v. McMenamin & Ward, 108 Or. 489, 216 P. 228. See also Johnson v. Hoffman (Or.) 284 P. 567. It is also well settled in this state that a motion for a directed verdict presents the same question for decision as does a motion for judgment of nonsuit. For a collection of Oregon cases on this subject, we call attention to Farrin v. State Industrial Accident Commission, 104 Or. 452, 205 P. 984. A perusal of the testimony herein shows that some competent evidence was adduced in support of each material allegation of the complaint. Hence it was the duty of the...