Simpson v. Simmons

Per curiam. The issue in this case is whether the evidence compelled a verdict for the plaintiff instead of the defendant’s verdict rendered by the trial court. We hold that it did not. Plaintiff’s declaration alleges fraud and deceit in the sale by the defendant of a 1969 Volkswagen to the plaintiff. A trial by the court resulted in a verdict for the defendant. Plaintiff’s motion to set aside the verdict as against the weight of the evidence and against the law “established in Maxwell Ice Company v. Bracket, Shaw & Lunt Company, 80 N.H. 236” was denied subject to exception which was transferred by Dunfey, J. (The Maxwell case holds a negligent representation to be actionable.) Certain facts in this case at bar are undisputed. In January 1973 the plaintiff, a resident of Sunapee, New Hampshire and a student in Ohio, went to defendant’s place of business to buy a used Volkswagen to drive back to Ohio. He was shown two: a 1964 VW and the 1969 VW which he bought after driving it and consulting with his father. He received a warranty against major breakdown if returned to defendant’s shop within thirty days of purchase. The price paid was $700 plus the trade-in of a 1961 Corvair which defendant valued at $100. The book value of a 1969 VW was $1,300 but plaintiff was told that the car had been in a wreck which accounted for the body damage, and that was the reason for the lower price. Plaintiff was also told that the car had been purchased for defendant’s family use two months before with 23,000 miles on it and that the additional miles had been put on by him. At the time of purchase, the odometer reading was 24,616. Plaintiff testified that two days after purchasing the car he left for Ohio, that the car seemed to be working okay, [692] and that he drove it for sixteen hours. He testified, however, that the brakes did not work well and that he found them to be worn and had them relined. He was told also his CV joints were bad so he had them replaced and an oil leak fixed. He further testified that he was told that the car had an older engine. He returned to New Hampshire with the car for his spring vacation and took the car to Marcotte’s Volkswagen garage because the clutch was slipping. He was told the car had the wrong flywheel and that it did not mesh properly with the starter. The service manager from Marcotte’s testified that when he examined the 1969 car, he found it had a 1963, 50-horsepower VW bus engine. There was evidence that it was not uncommon for VW owners to change engines and parts which are interchangeable, and that it is difficult to tell the year or horsepower of an engine without a serial number check. Defendant produced the Chevrolet dealer from whom he had purchased the car, who testified defendant said he wanted the car for his family use, that the car was operating all right. Defendant’s wife and a former employee testified to their use of the car during the two months defendant owned it and that it ran well and was trouble free during that period. Although it was findable that the car purchased by plaintiff contained an engine and other parts which were different from what had been originally installed by the manufacturer, the plaintiff admits that there is no evidence that defendant knew this at the time of the sale. Plaintiff, however, contends that defendant negligently misrepresented the car and relies on Rowell v. Chase, 61 N.H. 135 (1881), Maxwell Ice Co. v. Company, 80 N.H. 236, 116 A. 34 (1921), and Spead v. Tomlinson, 73 N.H. 46, 59 A. 376 (1904). However, there was no specific representation that the car contained a 1969 engine or that all the parts were original. Defendant told plaintiff that the car had been in a wreck, that he had not done the repair work on it, and that this was the reason for selling it for about $500 below the book price. It was findable that the car did in fact run well while defendant owned it as he had told the plaintiff. Considering all the evidence, we cannot say that the trial court was compelled to find that defendant was guilty of either intentional or [693] negligent misrepresentation. Sargent v. Janvrien, 109 N.H. 66, 242 A.2d 73 (1968). Exception overruled. Kenison, C.J., and Lampron, J., dissented.