Lehman v. Hansord Pontiac Co., 36677

• Citation: 74 N.W.2d 305,246 Minn. 1
• Decision Date: 09 December 1955
• Docket Number: No. 36677,36677
• Parties: Abe LEHMAN, Appellant, v. HANSORD PONTIAC CO., Inc., Respondent.
• Court: Supreme Court of Minnesota (US)

Page 305

74 N.W.2d 305

246 Minn. 1

Abe LEHMAN, Appellant, v. HANSORD PONTIAC CO., Inc., Respondent.

No. 36677.

Supreme Court of Minnesota.

Dec. 9, 1955.

Syllabus by the Court.

1. In a civil action where the appellant fails to specify his assignments of error as required by the rules of this court, he is ordinarily confronted with a rule that no question is presented to it; but, notwithstanding the rule, if respondent voluntarily argues a question argued by appellant, this court will consider it.

2. While the order denying the motion to amend findings and conclusions of law is not appealable, such order, or any intermediate order involving the merits or necessarily affecting the judgment appealed from, may be reviewed on appeal from the judgment.

3. It is permissible in this state for the owner of an automobile to testify as to its value without laying any other foundation than that he is the owner thereof. Denying plaintiff the right as owner to testify as to the value of his automobile constitutes reversible error.

4. While this court adheres to the rule that the owner of property either real or personal is presumptively acquainted with its value and may testify as to its value without any particular foundation being laid, it recognizes the rule quite generally applied that, if there is any apparent lack of knowledge on the part of the owner as to the value of his property, the same goes to the weight of the testimony given but not to the competency of that testimony.

5. It being the fair value which is sought to be arrived at in any case involving property values, it ought to be determined by reference to all relevant facts having probative value, and this applies to an action based on fraud and deceit.

6. The measure of damages in actions based upon fraud and deceit adopted and consistently applied in this state is the 'out-of-pocket' rule, limiting the amount of recovery to the loss naturally and proximately resulting from the fraud, this usually being the difference between what the plaintiff parted with and what he got.

7. Since the court below in determining the facts found fraud but no money damages, plaintiff was not as a matter of law entitled to an order for judgment with his costs and disbursements, having been denied money damages and thereby failing to qualify as the prevailing party.

Reversed.

Henry Levine, Minneapolis, for appellant.

Ryan, Kain & Mikan, Minneapolis, for respondent.

NELSON, Justice.

The plaintiff commenced his action for damages against the defendant in the municipal court of Minneapolis, basing his claim on fraud and misrepresentation and alleging that defendant represented to him that he was selling him a 1951 Pontiac used automobile but delivered to him a 1950 used model. In about a week after the transaction was closed and the car paid for and delivered, plaintiff discovered that he had gotten a 1950 model and notified the defendant. No corrective action being taken, suit followed.

The transaction took place July 3, 1953, at defendant's place of business. A sales representative of defendant, by the name of Girard, demonstrated the automobile to the plaintiff, stating to him at the time that this was the finest 1951 model he could find in the city. Plaintiff thereupon took delivery of the car and paid as the purchase price therefor $1,350 in cash. The salesman made out a written purchase order describing the car as a Hydromatic Tudor 1951 model giving the engine serial number. He then made out a receipt for the down payment of $10 and later the same day a receipt for payment in full, reciting in each receipt that the money paid was for the purchase of a 1951 Pontiac. Insurance coverage was arranged for covering a 1951 model and policy delivered thereon.

Upon receipt of the invoice at the end of a week, plaintiff discovered that the description of the car purchased read: "50 Ch Dlx 4 dr Used.' He testified that he had relied upon the representations of the salesman Girard and that, upon learning that the car delivered was a 1950 model, he immediately telephoned Girard, stating what he had discovered. He was told that he did not know what he was talking about; that it was a 1951 model; and that 'it is a mistake in the bill.' Shortly thereafter Mr. Girard came to plaintiff's house regarding the transaction, at which time according to the record the following conversation took place:

'Q. Now, you may state what the conversation was which was had in your home between yourself and Mr. Girard regarding this automobile? A. He came over to me and asked me if I don't like the car. I said, 'Yes, I like it.' 'So why did you put the dog hounds on me, because if they don't take the dog hounds off of me, then I'm going to lose my job.'

'Q. What else, if anything, was said? A. Well, I said, 'If this is a '50 and I bought a '51, where can I get a '51?' 'Well,' he says, 'I can't give it to you now, can't give it to you now."

The case came on for trial September 24, 1954, without a jury. The salesman Girard was no longer in the employ of the defendant and was not called as a witness. Plaintiff alleged that he relied upon the statements and representations made to him by defendant's sales representative; that such representations were false and untrue; that he was deceived and defrauded to his damage in the sum of $300, the 1950 used model being in fact not worth more than $1,050 while a 1951 model was worth the amount which he had agreed to pay for it.

The court found that defendant's agent on July 3, 1953, knowingly misrepresented to plaintiff that a certain Pontiac used automobile was a 1951 model, whereas in fact said used automobile was a 1950 model, and that in reliance on said misrepresentations plaintiff was induced to and did purchase said used automobile and then and there paid to the defendant the agreed purchase price. The court further found that the market value of the 1950 used model was, on the date of the sale, not less than what the plaintiff paid for it in cash and entered its conclusions of law that defendant defrauded the plaintiff but no monetary damages resulted therefrom. Judgment was ordered for plaintiff for his costs and disbursements.

Plaintiff moved the court for amended findings of fact and conclusions of law, or for a new trial; that the findings of fact be amended to read that the market value of the used 1950 model delivered to plaintiff was $1,050; and that the conclusions of law be amended to read that:

'Defendant defrauded the plaintiff resulting in plaintiff being damaged in the sum of $300.00.

'Let judgment be entered for the plaintiff in the sum of $300.00 plus his costs and disbursements herein.'

Plaintiff further moved that in the event that this motion be denied he be granted a new trial upon the following grounds:

'1. That the Court erred in failing to find damages in plaintiff's favor.

'2. That the Court's findings of fact and conclusions of law sustains plaintiff to have been damaged as a matter of law.

'3. Errors of law occurring at the trial.'

Plaintiff assigns errors on appeal from the judgment as follows:

'1. The Court erred in denying plaintiff's motion for amended findings.

'2. The Court's findings as to value of the car purchased by plaintiff is contrary to the evidence and law.

'3. The Court's conclusions of law are not sustained by the findings made herein.

'4. The Court erred in denying plaintiff's motion for a new trial.'

1--2. Plaintiff's assignment of errors do not comply with the rules of practice of this court. There is a failure to point out any specific error of law occurring at the trial and a failure to set forth the specific finding challenged by specific assignment of error as required. 1 Dunnell, Dig. (3 ed.) § 361. See, Taylor v. Chicago Great Western R. Co., 165 Minn. 266, 206 N.W. 404; Raymond v. McKenzie, 220 Minn. 234, 19 N.W.2d 423.

It is the rule, and it is well settled in this state, that findings of fact made by the trial court will be disturbed only where the evidence does not reasonably tend to support them when such evidence is considered as a whole. McLellan v. Stevens, 176 Minn. 419, 22o N.W. 770; S. Bader & Sons v. Gensler, 191 Minn. 571, 255 N.W. 97; Georgopolis v. George, 237 Minn. 176, 54 N.W.2d 137; 1 Dunnell, Dig. (3 ed.) § 411.

We have before us a fairly complete record of the proceedings at the trial and, while the assignments of error doubtless are faulty, we have concluded to dispose of the appeal on its merits. In re Estate of Fitzgerald, 205 Minn. 57, 285 N.W. 285. It appears on this appeal and the defendant has voluntarily considered questions in its brief argued by the appellant and therefore, this being a civil case, this court may if it chooses to do so consider the appeal upon the merits as was done in Erickson v. Mathwig, 226 Minn. 55, 31 N.W.2d 918. In the instant case the plaintiff caused judgment to be entered March 14, 1955, and appealed therefrom. He moved, in the court below, for amended findings and conclusions of law, and if same be denied, for a new trial. While the order denying the motion to amend findings and conclusions of law is not appealable, we have here an appeal from the judgment. Such order may be reviewed on appeal from the judgment. Louis F. Dow Co. v. Bittner, 185 Minn. 499, 241 N.W. 569; Breen v. Cameron, 132 Minn. 357, 157 N.W. 500; Nash v. Kirschoff, 161 Minn. 409, 201 N.W. 617. M.S.A. § 605.09(1) provides that on appeal from a judgment the supreme court 'may review any intermediate order involving the merits or necessarily affecting the judgment appealed from'. One of the grounds upon which the plaintiff moved the court, in the alternative, for a new trial was errors of law occurring at the trial.

3--4. It was error for the court to deny the plaintiff, owner of the automobile in the case at bar, the right to testify as to its value without laying any further foundation than that he was in fact the owner thereof. He was denied the...