Opinion
Emory L. O'Connell, Robert J. Enochs, Denver, for plaintiffs in error.
Klauber, Kayne & Kerner, Robert R. Kayne, Boulder, for defendants in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties will be referred to as they appeared in the trial court where plaintiffs in error were the defendants and defendants in error were the plaintiffs.
Plaintiffs brought this action to recover damages which they allegedly sustained in purchasing a motor vehicle in reliance on defendants' representation. They alleged that the defendants represented the unit to be new when it was in fact used. Trial was to a jury which returned a verdict in favor of the plaintiffs for $1,000 actual and $500 exemplary damages.
Plaintiffs were interested in purchasing a motor home. They contacted a retail dealer who arranged a meeting with the defendants who were factory dealers engaged in the wholesale and retail sales of motor homes.
Plaintiffs examined a demonstrator and expressed an interest in purchasing a new unit of the type shown and in taking delivery at the factory in Michigan. Defendant Bullock, the general manager of defendant corporation, then told them that he had a new unit in stock and showed it to them. Plaintiffs subsequently purchased the vehicle Bullock showed them and the transaction was completed through the retail dealer who originally sent plaintiffs to the defendants.
The vehicle was represented by Bullock as a new vehicle with only drive-in miles from the factory in Michigan. In fact, as Bullock admitted, the vehicle was not new. Bullock admitted taking a vacation trip in the unit with his family and admitted that the vehicle had been damaged while on this trip. Defendants argue, however, that the misrepresentation concerning the vehicle is not actionable because at the time it was made, it was not made with the intent of inducing plaintiffs to buy the unit.
It was incumbent upon the plaintiffs to prove that the misrepresentation was made by defendants with the intent that the plaintiffs rely thereon. Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399; Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458. The jury was so instructed. The evidence shows the defendant corporation was a dealer in motor homes and its business was the sale of such merchandise. The plaintiffs were interested in purchasing a new unit and the defendant Bullock showed them one which he represented as new. Plaintiffs bought the unit. The jury's verdict finding that defendants' mis-representation was made with the intent that plaintiffs rely thereon is supported by the evidence.
The only other issue involved is whether there is sufficient evidence to justify a verdict of $1,000 in actual damages. Defendants argue that there is no evidence of actual damages and therefore neither the verdict for actual nor the verdict for exemplary damages can be sustained. The verdict for exemplary damages is not otherwise challenged.
The court instructed the jury that if they found in favor of the plaintiffs, they should assess as damages the difference between the value the vehicle would have had if it had been as represented and the actual value of the vehicle at the time of the sale. This instruction was a proper statement of the 'loss of bargain' rule approved by Greathouse v. Jones, 158 Colo. 516, 408 P.2d 439, and presently embodied in Colorado Jury Instructions.
Bullock testified that the retail value of a new vehicle of the type involved was $12,000. Plaintiffs called an expert to establish the actual value of the used unit involved at the time of the sale. The expert testified that he had examined the vehicle seven months after the sale. He testified that the value of the unit was between $9,500 and $10,000 and defendants interpret this testimony as an expression by the witness of the value of the unit on the date of this examination. However, the witness was specifically asked and directed by the court to give his opinion of the value of the unit on the date of the sale. His testimony in answer to this question was sufficient to enable the jury to establish the actual value of the unit at the time of the sale. Within the testimony of Bullock and the expert witness, there is sufficient evidence to support the jury's finding that plaintiffs sustained actual damages in the amount of $1,000.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.