Myers v. Liberty Lincoln-Mercury, Inc.
| Decision Date | 15 March 1988 |
| Docket Number | INC,No. 8721DC692,LINCOLN-MERCUR,8721DC692 |
| Citation | 89 N.C.App. 335,365 S.E.2d 663 |
| Court | North Carolina Court of Appeals |
| Parties | Richard S. MYERS and Mary Hoffman Myers v. LIBERTY |
Leonard, Tanis & Cleland by Robert K. Leonard and Warren C. Hodges, Winston-Salem, for plaintiffs-appellees.
A. Carl Penney, Winston-Salem, for defendant-appellant.
Plaintiffs sued defendant under Chapter 75 of the North Carolina General Statutes for selling them a 1982 model Oldsmobile Firenza automobile that it represented was a 1983 model, and following a trial before Judge Roland H. Hayes without a jury judgment was obtained in the amount of $4,200. The judgment was based upon findings that the 1982 model car plaintiffs bought from defendant was misrepresented as being a 1983 model and was worth $1,400 less than a 1983 model and conclusions of law that defendant's misrepresentation violated G.S. § 75-1, et seq. and the damages should be trebled. The judge's findings of fact, not being excepted to by defendant, are binding upon us, In re Sterling, 63 N.C.App. 562, 305 S.E.2d 769 (1983), and clearly support the conclusion of law that the misrepresentation violated G.S. § 75-1.1.
In seeking to overturn the judgment defendant contends that the record established two defenses to the suit and that other prejudicial errors were made. First, it asserts that the misrepresentation as to the model of the car was not a violation of the Act because it was not intentionally or fraudulently made, but was just a "mistake" by its employees. This contention has no legal basis, since to prevail in a Chapter 75 case, a purchaser of misrepresented merchandise does not have to prove fraud, bad faith or intentional deception as at common law; it is enough that the goods bought were misrepresented, Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), assuming, of course, that the other requisites of the action are proved, about which no question is raised by this appeal. Next, it contends that the action should have been dismissed as a matter of law because a "revised contract" that plaintiffs admittedly signed a few days after the car was bought states that it was a 1982 model. This contention ignores, inter alia, the evidence plaintiffs presented on this point, the prerogative a fact finder has under our jurisprudence to determine the credibility of conflicting evidence, and the court's uncontested findings of fact to the effect that the so-called "revised contract" was a sham. Plaintiffs' evidence with respect to this contention, in substance, was that: About a week after the sale was completed and plaintiffs drove the Firenza away, defendant's agent obtained their signatures to...
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