562 P.2d 972 | Or. | 1977
Pro Tempore.
This is an action at law by the buyers of a tavern against the seller and his broker for common law fraud. The seller made no appearance, was found in default, and is not a party in this appeal. Plaintiffs allege that defendants represented that the tavern sold 50 kegs of beer per month and was netting an average profit of $1,000 per month, that these representations were false, and that they were made by the defendants with the knowledge that they were false or with reckless disregard for their truth. The jury returned a verdict for the plaintiffs in the sum of $9,172.77 general damages and $5,000 punitive damages. Judgment was entered on the verdict and defendant Dean Vincent, Inc., appeals.
Defendant contends that there was insufficient evidence to make out the elements of an action for fraud. There was such evidence.
Defendant next contends that the trial court erred in instructing the jury on the measure of plaintiffs’ damages. We agree and therefore must reverse. The instruction was as follows:
"If you find that Dean Vincent is guilty of fraud as I have defined it to you, the measure of damage is the money lost, if any, by the Plaintiffs; and in this case this may include, although you are not bound by it of course, although the allegations do constitute a ceiling beyond which an award cannot be made, and considering the general damage, it may consist of the operating loss of $1,327.77, the loss of $800.00 Plaintiffs paid toward equipment according to their theory, and the down payment of $7,000.00. These three figures together make up the figure of $9,172.77.”
It is evident from the transcript that plaintiffs’ counsel and the trial judge regarded the three dollar amounts designated in the instructions as constituting plaintiffs’ net loss as a result of the purchase of the tavern, and that they fell well within the established principle that in a fraud case a successful plaintiff may recover
In the present case plaintiffs did not adduce evidence to prove that the interests which they received as a result of the contract of purchase were of no value. In the absence of evidence to the contrary, it is fair to assume that the unexpired term of the lease would have some value.
Reversed and remanded.
rThe other measure of damages in an action for fraud is the "benefit of the bargain.” See Otte v. Ron Tonkin Chevrolet Co., 264 Or 265, 503 P2d 716 (1973).
See Van DeWiele v. Garbade, 60 Or 585, 591, 120 P 752 (1912).
Likewise, plaintiffs acquired certain items of personal property which in the absence of evidence to the contrary we must assume had some value.
Defendant also assigns as error the trial court’s refusal to reject evidence of another sale of a tavern through defendant Dean Vincent, Inc., to prove that defendant, in a like situation, misrepresented the success of the business. It is not necessary for us to discuss this assignment, because we can assume that on a retrial the alleged deficiency in the proof will, if possible, be supplied.