Perry v. Schoonover Motors, Inc.

• Decision Date: 05 May 1962
• Docket Number: No. 42534,42534
• Citation: 371 P.2d 152,189 Kan. 608
• Parties: Bernard F. PERRY, Appellee, v. SCHOONOVER MOTORS, INC., a corporation, Appellant.
• Court: Kansas Supreme Court

Page 152

371 P.2d 152

189 Kan. 608

Bernard F. PERRY, Appellee, v. SCHOONOVER MOTORS, INC., a corporation, Appellant.

No. 42534.

Supreme Court of Kansas.

May 5, 1962.

Syllabus by the Court.

1. In a damage action by a purchaser for fraud inducing the purchase judgment was entered upon a verdict in favor of the plaintiff, and on appeal by the defendant the record is examined and it is held: The trial court did not err (a) in the admission of evidence; (b) in the giving of instructions as to the measure of damages; and (c) in overruling a motion for a new trial, all as more particularly set forth in the opinion.

2. A document which purports to disclose an admission by a party against whom it is introduced is admissible into evidence during the trial of a case, and it is the function of cross examination or direct evidence presented by the party against whom it is asserted to develop the fact that the admission is not what it purports to be.

3. In a damage action by a purchaser for fraud inducing the purchase the measure of damages is the difference between the real value of the property and the value which it would have had if the representations had been true. This measure of damages applies without regard to the price paid, and, in the case of an exchange, without regard to the value of the property given in exchange by the party defrauded, although the price paid may properly be submitted to the jury as a fact to aid them in the assessment of damages.

4. The price paid for an article is some evidence of its value for the purpose of assessing damages.

5. The granting of a motion for a new trial upon the ground of newly discovered evidence lies within the discretion of the trial court, and where the facts indicate a lack of diligence on the part of the complaining party, the trial court does not abuse the exercise of its power of discretion by refusing to grant a motion for a new trial.

Ralph E. Skoog, Topeka, argued the cause, J. A. Dickinson, Sam A. Crow, Jack C. McCarter and Hart Workman, Topeka, were with him on the brief for appellant.

Wright W. Crummett, Topeka, argued the cause, Hall Smith and William L. Rees Topeka, were with him on the brief for appellee.

SCHROEDER, Justice.

This is an action for damages resulting from the alleged misrepresentation of an automobile as new by the defendant dealer to the plaintiff buyer when, in fact, the automobile was a used current model with low mileage. Appeal has been duly perfected by the defendant from a verdict and judgment for the plaintiff in the sum of $1,000 and costs, specifying various trial errors.

The question presented concern the admission of evidence and instructions as to the measure of damages.

In May, 1958, the appellant, Schoonover Motors, Inc., transferred its Lincoln-Mercury franchise to Bob Nowlin Motors. The appellee, Bernard F. Perry, was aware that Schoonover was selling the franchise.

In the early part of June, 1958, the appellee approached Don Cummings, a used car salesman of Schoonover's, at the used car lot located across the street from the new car showroom. It was closing time and the appellee and the salesman looked at a 1958 red and white Mercury automobile, the subject of this action, through the showroom window.

The next morning the appellee went back to Schoonover's and looked the car over on the showroom floor and discussed buying the automobile. A few days later the appellee traded a 1955 Chevrolet for the Mercury. The closing papers indicated a cash sale price of $4,247 for the Mercury with an allowance of $2,310 to the appellee for the Chevrolet.

The evidence established that the Mercury was, in fact, a used automobile which had previously been sold in December, 1957, to Charles Hall who operated a used car lot. About April 5, 1958, he traded the Mercury in on another automobile.

The appellant admits that the Mercury automobile was a low mileage current model, but contends that it was sold in the ordinary course of business as such, and in accordance with the practice of the trade was financed as a 'new' automobile.

The appellee claimed that the automobile was represented to him as new and the record discloses sufficient evidence to support a finding by the jury that the automobile was represented to be new. The appellee so testified and the used car salesman, Don Cummings, who sold the automobile to the appellee, testified he was told the automobile was new, and upon making the sale received a commission of $50 which was the customary new car commission. He further testified:

'I recall a conversation between Mr. Ross Schoonover and Bernard Perry. I think it took place prior to my delivering the car but that is just a guess. Mr. Perry asked Mr. Schoonover about the warranty and he said it was a new car, he would personally guarantee it, that being a new car that Mr. Nowlin would take care of it, him being now the new Mercury dealer.'

The appellee alleged in his petition that the Mercury automobile in question was not worth the sale price of $4,247, but was actually worth $3,280; that he financed part of the purchase price and paid $439.53 in interest and finance charges upon the unpaid principal balance of said sale price; that had the automobile been sold by the appellant for its actual worth, the interest and finance charges upon the unpaid principal balance would have been in the amount of $212.39; and that the appellee incurred expenses in the amount of $80.04 for repairs which would not have been necessary had the automobile been as represented by the appellant. In addition to actual damages of $1,273.68, the appellee sought punitive damages in the sum of $1,000 by reason of the false, fraudulent and malicious representations and statements of the appellant, and costs of the action.

The record does not disclose that any special questions were submitted to the jury which returned a verdict against the appellant in the sum of $1,000. The trial court thereupon entered judgment for this amount and costs.

The appellant first complains of the admission into evidence of a document entitled 'Purchase Money Mortgage' dated the 7th day of June, 1958. This document describes the automobile in question and specifically indicates the automobile to be 'new.' The document was signed by the appellee and R. S. Schoonover as President of the appellant corporation.

The appellee admitted upon presenting this exhibit for acceptance in evidence that he did not finance the purchase of this automobile with the appellant, but arranged for independent financing with Mr. Wenger of Pacific Finance. Thereupon the appellant objected to its admission in evidence. The acceptance of this document in evidence is specified as error.

The document was presented by the appellee as additional evidence solely for the purpose of showing that the automobile was represented to be new. For this purpose the exhibit was properly admitted into evidence.

The fact that the document entitled 'Purchase Money Mortgage' was not what it purported to be on its face, and was never a part of the transaction between the appellee and the appellant, was evidence to be developed upon cross examination. On cross examination the appellee testified the document was drawn up by a Mr. Wenger at Pacific Finance and Mr. Schoonover, to assist the appellee in financing the automobile at Pacific Finance.

The appellant contends the trial court erred in its instructions to the jury regarding the measure of damages to be applied to the facts in this case.

Complaint is made of the following instruction given to the jury:

'* * * you are instructed that the measure of damages is the difference in the value between the car represented to the plaintiff by the defendant and the value of the car actually received by the plaintiff. * * *'

The foregoing is the law previously announced by this court in Speed v. Hollingsworth, 54 Kan. 436, 38 P. 496; McDanel v. Whalen, 91 Kan. 488, 138 P. 590; Epp v. Hinton, 91 Kan. 513, 138 P. 576, L.R.A.1915A, 675; and Hinchey v. Starrett, 91 Kan. 181, 137 P. 81, rehearing 92 Kan. 661, 141 P. 173. In these opinions the court has affirmed the rule that the plaintiff is entitled to the benefit of his bargain.

The appellant complains that the trial court refused over objection...