Liles v. Pentecost

GARDNER, J. This appeal is from a judgment in the sum of $250 recovered by appellee against appellant in an action of deceit. The cause was tried before the court without a jury. The plaintiff purchased a car from defendant, giving in exchange his used car, valued by the parties at $235, and paid two-installment notes of $31 or $32 each. Plaintiff insists the car he purchased was to be a new car, and that he later discovered it was a “bad secondhand” car. 1-Ie made no further payments, and defendant repossessed, itself of the car; plaintiff stating he told them “they could have the automobile back.” Plaintiff testified defendant told him they would give him a new car, while defendant ’insists the car sold plaintiff had been used to some extent — of which fact plaintiff was informed — but he selected the car himself, as it had on it some extra equipment. There was evidence also tending to show the ear purchased “looked exactly like a new car, and absolutely showed no abuse.” It was without dispute, however, that the car had been previously sold, and used by a Mr. Holt, who had returned it in exchange for another, but as to the length of time < used by Holt before its return the evidence is in conflict. One Talley, who at the time was in defendant’s employ, and who testified that he made the trade with plaintiff, *414 stated that he told plaintiff he would “swap him a new car for his old one,” and admits the car sold was not 'a new car. Sherrod, a witness lor the defendant, and who also was in its employ, states on re-cross examination he “told plaintiff this was a new c*ar.” The price to be paid was the price of a new car. These references will suffice to show the sufficiency of the evidence to make out the case of deceit as alleged, and that the insistence of counsel to the contrary is without merit. The evidence was in conflict, and the action of the cSurt in overruling the motion for a new trial will not he here disturbed. The bill for repairs of $19.60 was not for repair of damages on account of the freeze, according to plaintiff’s testimony, but “was for taking out the piston rods, and putting in new pistons,” which was rendered necessary “just a little while” alter the purchase ol the car. Plaintiff lurther stated a new car would not wear out piston rings within two months. Prom plaintiff’s evidence it may be very reasonably interred that tbe cost of these repairs was a result of the fact that the car was not a new car, and the testimony to this effect was admitted without error.- It is next insisted there was no evidence as to the proper measure of damages. The general rule as to measure of damages in cases of this character is the difference between the actual value of the property at the time of the sale or exchange and its represented value. Tillis v. Lbr. Co., 188 Ala. 122, 65 So. 1015; 27 Corpus Juris, 92. Here, however, the property purchased has been, returned, and under the circumstances of this case the general rule would not measure the loss sustained. The limitation upon the general rule, applicable here, is well stated in 27 Corpus Juris, 94, as follows: “The rule- that a defrauded purchaser’s damages are to be measured by the difference between' the real and represented values of the property purchased does not apply where, because of the peculiar circumstances of the case involved, such difference fails to measure accurately the loss sustained, as where the purchaser rescinds -and returns the property received, or where he received nothing of value, but in such cases he may properly recover the amount he paid with interest from the date of payment, or, in the case of an exchange, the .value of the property given by plaintiff, and his recovery will be limited to such amount.” See, also, Kilby Locomotive Wks. v. Lacey, 12 Ala. App. 464, 67 So. 754. The facts hereinbefore referred to sufficiently disclose that the loss sustained by plaintiff fully measured up to the judgment rendered, and the contention that the evidence was not sufficient to furnish a reasonable basis for assessment of damages is not well taken. We have considered the assignments of error urged in brief, and, finding no reversible error, the judgment will -be affirmed. Affirmed. ANDERSON, O. J., and SAYRE and MILLER, JJ., concur.