Opinion
6 Div. 652.
June 16, 1953. Rehearing Denied August 11, 1953.
Appeal from the Circuit Court, Tuscaloosa County, Reuben H. Wright, J.
Davis Zeanah, Tuscaloosa, for appellant.
Plaintiff suing for fraud has the burden of establishing falsity of representations and defendant's knowledge of their falsity. 10 Ala.Dig., Fraud, 50; Henderson v. Gilliland, 187 Ala. 268, 65 So. 793; Southern Building Loan Ass'n v. Holmes, 227 Ala. 1, 149 So. 861; Id., 25 Ala. App. 499, 149 So. 859; Id., 227 Ala. 254, 149 So. 862; Morrison v. Fed. Land Bank, 232 Ala. 138, 167 So. 288. Fraud alone, without damage, will not give a right of action. There can be no recovery of even nominal damages where plaintiff fails to show injury sufficient to sustain the action of fraud. Wall v. Graham, 192 Ala. 396, 68 So. 298; Wilson v. McKleroy, 206 Ala. 342, 89 So. 584; Oates v. Glover, 228 Ala. 656, 154 So. 786; Mobile Bldg. Loan Ass'n v. Odom, 232 Ala. 19, 166 So. 698. The measure of damages in a case of this kind is the difference between the value of the goods sold at time of discovery of the fraud and the purchase price with interest. So. Bldg. Loan Ass'n v. Wales, 24 Ala. App. 542, 138 So. 553; Id., 224 Ala. 40, 138 So. 556; Mobile Bldg. Loan Ass'n v. Odom, supra. Where there is no evidence showing such value, then the evidence fails to show plaintiff suffered any damage. Mobile Bldg. Loan Ass'n v. Odom, supra; 37 C.J.S., Fraud, § 103 P. 409. The court must instruct the jury as to proper measure of damages. 37 C.J.S., Fraud, § 151, p. 495. Hearsay is no more admissible in a memorandum used in evidence than it would be in direct oral testimony. Deal v. Hubert, 209 Ala. 18, 95 So. 349. The mere fact that a letter is received by course of mail does not authenticate it as the letter of the purported author. Owensboro Wagon Co. v. Hall, 149 Ala. 210, 43 So. 71. Institution of action for deceit constitutes ratification of contract. Southern Bldg. Loan Ass'n v. Bryant, 225 Ala. 527, 144 So. 367. Rescission is required in order to sustain. action for money had and received. Kennedy v. Collins, 250 Ala. 503, 35 So.2d 92; Day v. Broyles, 222 Ala. 508, 133 So. 269.
F.F. Windham, Tuscaloosa, for appellee.
It was not necessary that appellee rescind the contract in order to recover in this action. American Surety Co. of N.Y. v. Hooker, 36 Ala. App. 39, 58 So.2d 469; Bradfield v. Patterson, 106 Ala. 397, 17 So. 536. Where the losing party is not entitled to recover in any event, he cannot be heard to complain of errors on the trial. Adams v. Corona Coal Iron Co., 183 Ala. 127, 62 So. 536. Plaintiff was entitled to recover the difference between the value of the automobile as represented and its actual value. Stewart v. Riley, 189 Ala. 519, 66 So. 488. Where a question of fraud is involved, great latitude is ordinarily permitted in introduction of evidence. Hall v. Santangelo, 178 Ala. 447, 60 So. 168; Riddle v. Batson, 16 Ala. App. 566, 80 So. 140. The insurance policy was properly admitted. The evidence clearly entitled plaintiff to a judgment. Colt Co. v. Price, 210 Ala. 189, 97 So. 696; Rhodes Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247.
This is an action for deceit in the sale of an automobile. In the court below the plaintiff recovered judgment in the amount of $350.
On the submission in this court the appellee filed a motion to dismiss the appeal on the ground that there was "delay in prosecuting the same." This insistence is based on the belated action of the trial judge in ruling on the motion for a new trial.
The attorneys entered into an agreement with respect to this delay, the effect of which was a waiver by the appellee of a discontinuance of the motion. Sovereign Camp, W. O. W. v. Thompson, 234 Ala. 216, 174 So. 761.
The evidence in appellee's behalf supported his claim that he purchased a Packard automobile from the appellant and it was represented to be a 1950 model when in fact it was a 1949 model.
Mr. Mills, salesman for appellant, testified he told the appellee that the automobile was a 23rd series, which was a late 1949 or early 1950 model.
"A contract of sale of a motor vehicle designating it as a model of a particular year constitutes a warranty that it is of that model, and the warranty is broken by delivering to the buyer a model of a different year." 77 C.J.S., Sales, § 330 (a), p. 1201. See also, Kilborn v. Henderson, Ala. App., 65 So.2d 533 ; Williams v. McClain, 180 Miss. 6, 176 So. 717; Pendell v. Warren, 76 Cal.App. 33, 243 P. 707; Foutty v. Chalmax Sales Co., 99 W. Va. 300, 128 S.E. 389; Stringfellow v. Botterill Automobile Co., 63 Utah 56, 221 P. 861, 34 A.L.R. 533, annotations p. 537 and 538.
Ante, p. 173.
We cannot agree with the insistence that appellant was due the general affirmative charge. There was substantial evidence that the Packard was a 1949 model and there was sharp conflict in the testimony relating to the representations. McMillan v. Aiken, 205 Ala. 35, 88 So. 135.
The fairly recent case of Liberty Motors, Inc. v. Haynes, 36 Ala. App. 600, 61 So.2d 135, is not factually comparable to the case at bar. In the Haynes case we held that the defendant was not due the general affirmative charge, but we concluded that the verdict was contrary to the evidence. The preponderance of the proof established that the year model of the automobile was as it was represented by the salesman.
Appellant claims there was no proof that the appellee was damaged.
A witness testified that the reasonable market value of a 1949 Packard car was between $1700 and $1800 and a 1950 model from $2100 to $2200.
Appellant's attorney excepted to the following excerpt from the court's oral charge:
"Gentlemen, if I stated to you that the measure of damage in the event you determine plaintiff was entitled to recover was the difference of the market value in a 1949 and 1950 automobile then I withdraw that statement. If you determine that the plaintiff was entitled to recover and you determine that a 1949 and 1950 automobile were the same value the plaintiff would not be entitled to recover. In other words, if the plaintiff wasn't damaged and both a 1949 and 1950 automobile are the same value and plaintiff wasn't damaged he would not be entitled to recover any damage."
The insistence is made that the statement of the court left the question as to the measure of damages in doubt and confusion.
If it can be said that this was an incomplete, misleading assertion, appellant's counsel could have clarified the instruction by a request for an explanatory charge. Evans v. State, 17 Ala. App. 141, 82 So. 625; Knight v. State, 22 Ala. App. 557, 117 So. 804.
The only other question pressed in brief of counsel relates to the action of the court in permitting the appellee to introduce an insurance policy in evidence. The conditional sales contract for the balance of the purchase price of the car was sold to a finance company. This company secured the policy in question. Apparently the instrument was later mailed to the appellee by the insurer. The policy designated the automobile as a 1950 model. The appellee did not negotiate with the insurance company for the policy. This was done by the finance company.
The character of the transaction leads to the conclusion that the data relating to the description of the car was obtained from some record which was prepared or furnished by the appellant.
The admissibility of the instrument comes under the influence of the rule pertaining to admissions. 9 Ala. Digest, Evidence, 215 (1).
It should be noted also that in actions of the kind at bar great latitude is allowed in the scope of the introduction of evidence. 10 Ala. Digest, Fraud, 52.
The judgment below is due to be affirmed. It is so ordered.
Affirmed.