Appellees-purchasers, alleging that an automobile sold to them as new was in fact used, filed a three-count amended complaint against appellant-car dealership. Count 1 sought rescission of all purchase contracts and loan agreements made with respect to the car. See, e.g.,
Rountree v. Davis,
1. The automobile purchased by appellees was subsequently repossessed and sold by Ford Motor Credit Co., the assignee of the financing agreement between appellant and appellees. Over appellant’s relevancy objection, a letter from Ford Motor Credit Co., claiming that the proceeds of the sale did not satisfy appellees’ indebtedness and demanding payment of the deficiency, was allowed into evidence. On appeal, appellant, submitting that the evidence failed to establish payment of the claimed deficiency by appellees or any further collection action on the part of Ford Motor Credit Co., urges that that letter represented a potential claim and was inadmissible. Since appellant did not advance this argument on the trial level as a ground for excluding this evidence, the argument will not be considered on appeal.
Redwing Carriers v. Knight,
2. The court properly refused to permit appellant to challenge the accuracy of trade-in allowances appearing in the sales contract between appellant and appellees. Notwithstanding appellant’s claim that this allowance reflected both the actual value of the trade-in plus the discount otherwise given on the car sold by the dealer, the proffered evidence was inadmissible to vary the terms of the written contract,
Stuckey v. Kahn,
3. The court refused to permit appellant to introduce evidence of the rental value of a similar make, less expensive car than the one purchased by appellees. Appellant urges that the exclusion of this evidence erroneously denied appellant the opportunity to establish the value of the benefit conferred on appellees during the period they used the vehicle. We disagree.
While the value, if any, of the benefit conferred by reason of possession may be the proper subject of a setoff
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(see, e.g.,
Wilson v. Burks,
4. The trial court properly permitted a witness to testify as to the value of the vehicle at the time appellees attempted to rescind the sale, even though the rescission was attempted approximately five months after the sale.
Moon v. Wright,
5. In the absence of a request, the court did not err in failing to define the term "actual damages” as that term is used in Sec. 10 (b) of the Fair Business Practices Act of 1975.
Bank of Cumming v. Goolsby,
6. In several related enumerations of error, appellant urges that the jury’s verdict is not supported by the evidence. This is well taken.
The itemized summary of evidence relating to damages prepared by appellees to retain the verdict falls short of its purpose. Without commenting on all the evidence cited by appellees, it is sufficient to note that the cash down payment on the car purchased by appellees, the monthly cash payments made on the car, the trade-in allowance, the various contractual fees allegedly paid to finance the car, licensing fees for a tag, and a potential claim for a deficiency (see Division 1 of this opinion) are in the nature of restitution damages and are not the "actual damages” within the meaning of the FBPA for which treble damages will lie. Cf. generally State Ex. Rel. Guste v. Gen. Motors Corp., (La. App.) 354 S2d 770 (7,8), affd. (La.) 370 S2d 477, interpreting "actual deunages” to mean relief other than the refund of the purchase price and the return to the status quo that constitutes restitution. See also Cantrell v. First Nat. Bank of Euless, (Tex. Civ. App.) (
7. In charging the jury on the measure of damages under the FBPA count, the trial court instructed that "if you should determine that the defendant violated the terms of the Act, in the manner alleged, and that such violation was an intentional violation... then you shall... award exemplary deimages.” Insofar as the charge is susceptible to the interpretation that exemplary damages are mandatory when an intentional violation is found, the charge was erroneous and should not be given in the event of a new trial.
Cf. Walk v. Carter,
8. Appellant asserts that the trial court erred in refusing to charge in accordance with its request as to the notice required under the FBPA. See generally Code Ann. § 106-1210 (b). We must táke issue with this position.
Since the instruction requested by appellant may have implied that the sufficiency of the notice was a matter for the jury, the request was not a correct statement of the law. See, e.g.,
Public Nat. Ins. Co. v. Wheat,
9. Appellant contends that the trial court erred in declining to hold as a matter of law that the notice given by appellees did not comport with Code Ann. § 106-1210 (b) notice requirements. With this contention we cannot agree.
To satisfy notice requirements, appellees rely on a letter sent by them to appellant. This letter stated appellees’ contention that the vehicle which was sold to them as "new” was not in fact "new” when sold; partially
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listed various defects and nonconformities in the vehicle and referred to a letter in appellant’s possession listing other defects (cf. generally
Union Camp Corp. v. Youmans,
10. At trial appellant was not permitted to elicit testimony as to a telephone conversation taking place after the commencement of the instant action regarding an invoice which indicated that the vehicle sold to appellees was purchased by appellant as a used car. The court committed no error in so holding.
Aside from any other reason for excluding this evidence, appellant’s proffer failed to satisfy the requisite preliminary showing for the admission of telephone conversations.
Cannady v. Lamb,
11. Appellant, citing the definition of "intentional violation” contained in Code Ann. § 106-1202 (e), asserts that the judgment was demanded in its favor as to Count 3 of appellees’ complaint because the evidence failed to show that appellant "knew that [its] conduct was in violation of this chapter [i.e., Ch. 106-12].” We must reject this argument as wholly specious.
Since everyone is presumed to know the law (see
Puckett Paving Co. v. Carrier Leasing Corp.,
12. Enumerations of error not addressed herein more properly await another day for resolution.
Judgment reversed.