21 N.W.2d 427 | Neb. | 1946
This is an action at law. The plaintiff charges fraud and deceit practiced by the defendants in selling him a motor
The defendant, C & C Motor Company, by separate answer alleged it was a partnership; admitted the sale of a 1940 model Chevrolet truck on a conditional sales contract as pleaded by the plaintiff; that the plaintiff did not complete the contract according to the terms thereof; and denied generally other allegations of the petition.
The defendant, General Motors Acceptance Corporation, filed an answer similar in all respects to that of the C & C Motor Company, except that it is a corporation, and the conditional sales contract was assigned to it, and its codefendant was not its agent; denied generally the other allegations of plaintiff’s amended petition.
The plaintiff defaulted the conditional sales contract February 1, 1941. The truck was repossessed and apparently sold under foreclosure, the plaintiff having removed from the state.
The case proceeded for trial before a jury, and at the close of plaintiff’s evidence the defendant, General Motors Acceptance Corporation, separately moved to dismiss the suit as to it for the reason that the petition states no cause of action against it, and the evidence establishes no liability against it. In addition thereto, the defendant, C & C Motor Company, moved the court to dismiss the action as against it for the same reasons. Other parts of the latter defendant’s motion will be discussed subsequently in this opinion as occasion requires. The court sustained the motion and dismissed the plaintiff’s suit as to both defendants. From the overruling of the motion for new trial, plaintiff appeals.
The record discloses that the evidence is insufficient to make a case for the jury against the defendant, General Motors Acceptance Corporation, and the trial judge properly sustained such defendant’s motion to dismiss.
The remaining question is whether or not the trial court erred in dismissing the plaintiff’s suit against the defendant C & C Motor Company. In this connection, the burden is on the plaintiff to prove by preponderance of the evidence,
The plaintiff testified that he talked to the manager of the defendant C & C Motor Company several times, and was informed by him that the 1940 heavy duty truck would handle larger loads at a better rate of speed and that he would finance it for the plaintiff; also, that the truck would haul from four to six tons at from 40' to 50 miles per hour, and he took the manager at his word. He further testified that after he drove the truck a thousand miles and loaded it with three ton of hogs and started to Alliance, that it would not pull. He then drew a comparison between the 1936 Chevrolet truck which he turned in on the new truck as to its maneuverability, speed, and handling as against the 1940 truck in question. There is also evidence as to certain repairs which the defendant, C & C Motor Company, agreed to place on the truck and which were not furnished, also work performed thereon which resulted in no improvement. The evidence as to the faulty maneuverability and handling capabilities of the new truck, in comparison with the 1936 truck, is to some extent corroborated. It is apparently the plaintiff’s contention that the manager of the C & C Motor Company made false representations as set forth in the plaintiff’s amended petition, as an inducement to the plaintiff to execute the conditional sales contract.
It is true that parol testimony in a case of fraud and deceit is admissible to show that a representation made con
However, viewing the evidence in its most favorable light, it fails to show that the plaintiff relied upon any representations made by the manager of the defendant, C & C Motor Company, that constituted an inducement to the plaintiff to sign the conditional sales contract. The plaintiff testifies to no such fact.
It is obvious that the essential elements constituting the cause of action in fraud and deceit were not proven by competent evidence adduced by the plaintiff, and the court properly sustained the defendant C & C Motor Company’s motion to dismiss in such respect.
It is further contended by the plaintiff that an oral agreement was made between the plaintiff and the defendant, C & C Motor Company, that embraced an express warranty, and that such warranty was breached by such defendant within the contemplation of the Uniform Sales Act, citing section 69-412, and subsections 69-415 (1) and 69-447 (2), R. S. 1943. The evidence fails to disclose the making of any such oral contract or any warranty made by the defendant, C & C Motor Company, either express or implied, upon which the plaintiff claimed he relied. The court properly dismissed the plaintiff’s suit on this phase of the case.
• The plaintiff would not be entitled to recover for prospective or uncertain profits which he might have made, had he not been deceived by and acted upon the defendant’s false representations. The profits with reference to trucking of his livestock, unless arrived at with reasonable certainty, may not be recovered, even assuming that he had proved fraud and deceit on the part of the defendant. See 37 C. J. S., Fraud, s. 141 d, p. 467.
While expenses incurred by the defrauded party as a proximate result of the fraud may be recovered, there must
To recover damages in a law action for fraud, the plaintiff must prove he has suffered loss directly as a consequence of a fraud and to an extent that is definite and ascertainable. See 24 Am. Jur., Fraud and Deceit, s. 265, p. 100.
“Where the evidence is insufficient to sustain a verdict for plaintiff, the dismissal of the action is not erroneous.” Beber v. Beebe & Runyan Furniture Co., 97 Neb. 446, 150 N. W. 204.
The judgment of the trial court is affirmed.
Affirmed.