Weber v. Brunswick Corporation

• Decision Date: 17 November 1966
• Docket Number: No. 8524.,8524.
• Citation: 368 F.2d 480
• Parties: George L. WEBER, Appellant, v. BRUNSWICK CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

368 F.2d 480 (1966)

George L. WEBER, Appellant, v. BRUNSWICK CORPORATION, Appellee.

No. 8524.

United States Court of Appeals Tenth Circuit.

November 17, 1966.

Raymond B. Whitaker, Casper, Wyo., for appellant.

Robert R. Rose, Jr., Casper, Wyo. (Philip F. O'Neill, Casper, Wyo., with him on the brief), for appellee.

Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge.

SETH, Circuit Judge.

The plaintiff-appellant commenced this action asserting that he had entered into a purchase agreement with defendant-appellee for bowling lanes to be installed at Glenrock, Wyoming. Appellant further asserted that appellee's representative made certain false representations during the course of the negotiations to induce appellant to make the purchase, and sought damages therefor. The appellee answered, denying the allegations of fraud, and counterclaimed in replevin for repossession of the equipment, for attorneys' fees and costs, and damages for wrongful possession by the appellant.

The pleadings were amended several times, but the causes of action were essentially as described above. The case was tried to a jury, which returned a verdict for the appellee on its counterclaim and denied the appellant any relief on his complaint. The court thereafter entered judgment on the causes of action relating to rescission of the contract and awarding of attorneys' fees to appellant. The appellant has taken this appeal.

The record shows that appellant negotiated with the representative of appellee relative to the purchase of equipment to establish a bowling alley. The appellant signed a written order for the equipment and thereafter signed a conditional sales contract and promissory note for the purchase price remaining after the down payment. This agreement required appellant to make certain monthly payments. Appellant failed to make payments as required by the note and contract, but continued to operate the business and retain possession. The appellee obtained a writ of replevin during the course of these proceedings which was duly executed.

Appellant by his complaint raised the issue of fraud and sought damages therefor, as mentioned above. This fraud, as alleged, relates to certain statements which were made by the sales representative of the appellee to appellant during the negotiations for the purchase and sale of the bowling equipment. These statements, as testified to by appellant, were that a survey had been made by the appellee of the Glenrock community which showed that it would "support" a stated number of bowling lanes. Appellant also testified that the same agent told him that the Glenrock community would support a certain number of lanes. The points relative to the issue of fraud which were raised by appellant on this appeal relate primarily to the trial court's instructions to the jury and instructions offered by appellant which were refused by the court. The appellant also objects to a reinstruction of the jury given by the court and the manner in which it was given.

The elements of a cause of action for fraud have been stated by the Wyoming courts on a number of occasions. One of the earliest principal cases on the subject is First National Bank v. Swan, 3 Wyo. 356, 23 P. 743. In this case the court was concerned with statements of opinion and statements as to future events. The court there held that a statement or representation which relates to the future is not a basis for a claim of fraud. Basically the same rule has been recently restated by the Wyoming Supreme Court in Davis v. Schiess, Wyo., 417 P.2d 19, which was concerned with a sale of a motel. The court there cited First National Bank v. Swan, supra, and held that an expression of opinion as to value cannot serve as the basis for an action in fraud, nor can an expression of opinion be considered to be a representation of fact. Thus in Wyoming it is apparent that an action in fraud must be based upon a statement of fact. There were other factors in the Davis case, including the purchaser's knowledge, which led to the result reached by the court. Appellant cites and relies on the case of Lawson v. Schuchardt, Wyo., 363 P.2d 90. This case, and Claus v. Farmers & Stockgrowers State Bank, 51 Wyo. 45, 63 P.2d 781, were in reality concerned with statements of existing facts and not with matters of opinion or expectation. The facts represented in the Lawson case were certainly questions of fact relating to the accessibility and existence of a lake available to the resort in question.

The trial court in the case at bar instructed the jury on the issue of damages in accordance with the Wyoming cases referred to above. The present fact and future event opinion problems were adequately covered. The elements as related to the particular case were also listed by the court as...