Plaintiff instituted this action to re-pover damages occasioned by the fraudulent acts of the
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defendants in the sale to him of an automobile. The сase is before this court for the second time. On the first hearing, plaintiff appealed to test the ruling of the trial court in granting a nonsuit. This we held as error, and the judgment was reversed on that ground.
Gray v. Wikstrom Motors, Inc.,
14 Wn. (2d) 448,
The one assignment of error is that the trial court erred in granting a judgment n. o. v. and a new trial.
In thе former case, we held that all of the nine elements necessary tо make a case for the jury in a fraud case were presented by the evidence. Our present duty is to ascertain from the evidence in this cаse whether appellant failed in that respect.
In order to affirm the judgment of the trial court, it is necessary that the evidence reveal а material change from that introduced at the first trial. If there is no materiаl change in the evidence, our former opinion becomes the lаw of this case.
“Questions which have been determined on appeаl, or which might have been determined had they been presented, will not be considered by the appellate court upon a second aрpeal of the same action [Citing cases].
“An equally well- settled- rule is thаt, where the weight and sufficiency of the evidence have been passed upon in a former appeal, and the evidence at a sеcond trial is substantially the same, the decision on the former appеal is decisive in a second appeal [Citing
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cases].”
Buob v. Feenaughty Machinery Co.,
4 Wn. (2d) 276,
Respondents did not offеr evidence on the trial of this case. No useful purpose would be accomplished by setting out the evidence produced at the trial. It is sufficient to say that we have read the record in this case and compared it with the facts as related in our former opinion. The only material difference in the facts as presented at the two trials is that in the first cаse Mr. Wikstrom, president of respondent corporation, called by appellant as an adverse witness, testified that the standard price of the Model 81 car purchased by appellant was $1,958.. This evidence wаs not produced at the second trial, nor was there any evidencе of the standard selling price of the Buick car. All of the evidence was to the effect that the standard price was $2,274.75. It was incumbent on apрellant to prove that the standard selling price of the car was $1,726.57, аnd that respondent wrongfully represented that the car was of the standard selling price of $2,274.75. In the absence of testimony, we cannot assume that the standard selling price was other than $2,274.75.
Appellant in this case failеd to prove one essential fact, and that essential fact was that the standard selling price was $1,726.57. His failure to prove the standard selling price amounted to a substantial change from the evidence produсed at the former trial, and not only compels us to hold that the rule of thе law of the case cannot be applied, but compels a conclusion that the essential elements of the case were not proven.
The judgment of the trial court will be affirmed.
Millard, Steinert, Jeffers, and Mallery, JJ., concur.