J. Truett Payne Co. v. Jackson, 6 Div. 367

• Decision Date: 26 October 1967
• Docket Number: 6 Div. 367
• Citation: 203 So.2d 443,281 Ala. 426
• Parties: J. TRUETT PAYNE COMPANY, Inc. v. Charles B. JACKSON.
• Court: Alabama Supreme Court

Page 443

203 So.2d 443

281 Ala. 426

J. TRUETT PAYNE COMPANY, Inc. v. Charles B. JACKSON.

6 Div. 367.

Supreme Court of Alabama.

Oct. 26, 1967.

Porterfield & Scholl, Birmingham, for appellant.

Jenkins, Cole, Callaway & Vance, Birmingham, for appellee.

SIMPSON, Justice.

This is an appeal by the defendant from a judgment rendered in favor of the plaintiff in an action for fraud and deceit in the sale of an automobile. The jury returned a verdict in favor of the plaintiff in the amount of $20,000. Defendant filed a motion for new trial which was overruled. This appeal followed.

The case arose out of the following facts:

In June, 1964, appellee Jackson purchased a 1964 Oldsmobile from J. Truett Payne Company, Inc. Mr. Jackson paid the 'newcar sticker' price of $4,980 for the automobile, trading his old 1960 Oldsmobile and financing a balance of $3,000.

Mr. Jackson's evidence, which the jury apparently believed, was that the car had been sold to him by the defendant as a new car. The car showed 88 miles on the speedometer when he bought it. J. Truett Payne is a Chrysler dealer, not an Oldsmobile dealer. Jackson testified that appellee's salesman explained that a man in Clanton had ordered the Oldsmobile but that he had sold him a Chrysler and had taken the Oldsmobile off of his hands when it came in.

After Jackson bought the car he became suspicious that it was not in fact a new car. Leading to this suspicion was the fact that although he had paid for a new tag, a Chilton County tag was placed on the car a few days after he bought it. Appellee's salesman explained that one of the men had been in Clanton and picked up a tag while there. When he asked for the tag receipt it could not be found for several days. Finally one was given to him which indicated that the tag had been in the name of one A. L. Young, who was unknown to Jackson. Later, Mr. Jackson found a book of checks on a Clanton bank behind the back seat of the car. When the automobile had about 500 miles showing on the speedometer, it developed mechanical trouble. Jackson had the plugs and points replaced. Subsequently he had the car examined by a mechanic who examined the brake linings and testified that the condition of the brake linings indicated that the car had several thousand miles on it.

It was later discovered and proof was offered at the trial that J. Truett Payne had acquired the car from a Clanton Oldsmobile dealer. Payne had bought the car as a used demonstrator. The evidence was that a J. Truett Payne salesman had gone to Clanton and traded in an older model Oldsmobile for the car in question. He did not disclose to the Clanton people that he was buying the car for J. Truett Payne. He paid for the car with a cashier's check, but testified that the money belonged to J. Truett Payne Company, Inc. Young did not deny that the Clanton dealer had told him that the car was used, that it had been used by one of the employees as a demonstrator; and that it was unknown how many miles the car had on it because the speedometer had been disconnected. Young paid Shelton Motors in Clanton $2,100 cash for the car and traded a used car which was worth about $1,600.

Although appellee was promised one by two salesmen of J. Truett Payne, he never received a new car warranty on the car involved in this case.

When he discovered that the automobile he had bought was a used car, Jackson brought this action for fraud and deceit.

The defense made by appellant was that it had represented the car to be 'like new', not new; further, that the salesman who sold the car to Jackson did not know where it came from. These are fact questions which the jury resolved in favor of the plaintiff. The jury obviously believed the appellee's version of the case. It was not denied by appellant that Jackson paid the new car price for the automobile and the evidence is overwhelming that the appellant made every effort to keep the history of the automobile concealed from Jackson.

Appellant argues two points for reversal in this court. One, it is contended that the court erred in allowing appellee to elicit on cross examination statements made by A. L. Young to representatives of Shelton Motor Company in Clanton when the car was purchased. The conversation referred to was between Young and a salesman for Shelton Motors at the time negotiations were going on for the purchase of the car by Young. Appellant elicited from Young on cross examination that he had gone to Clanton and bought the car at the direction of Mr. J. Truett Payne; that Payne paid the money for the car, but that he, Young represented to Shelton Motors that he was buying the car for himself; he admitted that he had lied to the salesman at Shelton Motors in that he told him he had just gotten out of the Navy, that his wife must approve the car and that he was going to Orlando,...