Lizana v. Edward Motor Sales Co.

• Decision Date: 25 April 1932
• Docket Number: 29975
• Citation: 163 Miss. 266,141 So. 295
• Court: Mississippi Supreme Court
• Parties: LIZANA v. EDWARD MOTOR SALES CO

141 So. 295

163 Miss. 266

LIZANA v. EDWARD MOTOR SALES CO

No. 29975

Supreme Court of Mississippi

April 25, 1932

Division B

1. APPEAL AND ERROR.

Failure to specifically state what would be proved by witness, or to have witness make answer in jury's absence, precluded complaint of exclusion of witness' testimony.

2 SALES.

Setting back automobile speedometer to deceive customers as to material facts constitutes fraud.

3 SALES.

Material representations of fact by seller ignorant of their truth constitutes "fraud" in law, and seller must make his statement good.

4 EVIDENCE.

In suit to rescind automobile sale for fraud, evidence that seller customarily set back speedometers held competent.

5. APPEAL AND ERROR.Instruction regarding rescission of automobile sale for fraudulent representation held reversible error, because conveying idea that defendant must have known representation was false or made it with reckless disregard of truth.

Instruction predicating rescission of sale of automobile upon finding that at the time of making the alleged fraudulent, statement defendant's agent knew that the statement was false, or made the statement without regard to its truth or falsity, was reversible error, since it was immaterial whether defendant's agent knew the representation to be false or not, if he made the statement as a statement of fact and it had an effect upon the matter of the purchase by the buyer, who had a right to rely upon it.

HON. W. A. WHITE, Judge.

APPEAL from the circuit court of Harrison county, HON. W. A. WHITE, Judge.

Reversed and remanded.

O. J. Dedeaux, of Gulfport, for appellant.

Suit by E. V. Lizana against the Edward Motor Sales Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

When the defendant, thought its agent, represented to the appellant that the truck had been driven only 7500 miles and to confirm his statement called his attention to the speedometer of the truck which indicated a mileage of 7500 miles, the appellant had a right to assume that the representation was correct and make his decision as to the value of the truck therefrom. It follows that since the mileage an automobile travelled is a material element in determining the value of the automobile, the appellant had a right to show that the appellee had a custom or a rule of turning back the speedometers of its used cars.

Nash Mississippi Valley Motor Co. v. Childress, 125 So. page 708, 156 Miss. 157.

It is a well established rule that other similar frauds may be shown in order to show intent with which the representations complained of were made. In all controversies involving the question of fraud, a wide range of evidence is necessarily allowed, for it is seldom that fraud can be the subject of direct, positive evidence. Usually it is a matter of inference from the circumstances and facts. Where fraud is charged the evidence of other similar frauds perpetrated by the same person at or about the same time, and when the same motive to defraud may be reasonably supposed to have existed and especially where the acts are all part of one general scheme or plan to defraud is admissible.

12 R. C. L. 453, sec. 182; Jones Commentaries on Evidence (2 Ed.), Vol. 2, 1151, secs. 618, 619; Castle v. Bullard, 23 Howard (64 U. S.), 172, 16 L.Ed. 424; Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157.

Where goods are purchased on material representations of the seller, and not upon the purchaser's own judgment and the representations are false, and induced the purchaser to make the bargain, the contract cannot stand, regardless of whether the seller had actual fraudulent intent or not. Putting it differently, if the seller makes material representations of facts without knowing whether they are true or false, this is fraud in law, and the seller must make his statement good.

Hall v. Thompson, 1 Smedes & M. 443; Oswald v. Megehee, 28 Miss. 340; Rimmer v. Dugan, 39 Miss. 483; 77 Am. Dec. 687; Lindsey v. Lindsey, 34 Miss. 432; Alexander v. Meek, 132 Miss. 298, 96 So. 101; J. A. Fay & Egan v. Cohn & Bros., 130 So. 290.

C. S. Brown and Evans & Lindsey, all of Gulfport, for appellee.

It may be conceded that a representation as to the mileage of an automobile is material, and is such as would avoid a contract induced by such representations, provided they were false and were known to be false at the time they were made or were made without a knowledge of their truth or falsity. Nevertheless, the party in his pleadings, and the introduction of evidence thereunder, is still bound by the rule that he must plead what he would prove.

In view of the failure of the declaration to allege that it was appellee's custom to set back the speedometers on used cars, the trial Court did not err in excluding evidence upon the subject.

Whether the false representation was made with a knowledge that it was false or without knowledge that it was true is wholly immaterial. If, knowingly, he represented what was not true there can be no doubt he should be bound to make reparation. If without knowing whether his representation was true or not he took upon himself to make it to complainant, and upon the faith of it complainant acted, he is not less bound, although he may have been only mistaken and therefore perfectly innocent.

Rimer v. Dugan, 39, Miss. 477; Davis v. Heard, 44 Miss. 50.

If a false statement is made, certainly it must be made either knowingly or without regard to its truth or falsity, i. e., recklessly.

OPINION

Ethridge, P. J.

E. V. Lizana, the appellant, filed his suit in the county court of Harrison county, seeking to recover two hundred dollars paid on a truck purchased by him from the Edward Motor Sales Company. At the time of the sale, the speedometer on the truck showed that it had been run only seven thousand five hundred miles. The testimony of the appellant was to the effect that the salesman of the Edward Motor Sales Company represented that it had not been run more than said amount, and that it was in good condition. The testimony of the salesman for the Edward Motor Sales Company was to the effect that, while the speedometer showed seven thousand five hundred miles, he told Lizana that he would not guarantee the truck or the mileage, and that Lizana must look for himself and buy it on his own judgment.

The appellant offered to prove...