112 Wash. 541 | Wash. | 1920
On July 29, 1918, the plaintiff sold a Paige automobile to the defendant under a conditional bill of sale contract. After making several payments, the defendant refused to make other payments, whereupon the plaintiff commenced this action in replevin and took the automobile into its possession. The material allegations of the complaint were denied by an
First, it is claimed the court erroneously admitted certain evidence given by one Daverso on behalf of the respondent. He testified that he purchased this same automobile from the appellant prior to the date of the sale to respondent. He was then asked what the appellant told him as to the model of the car and whether or not it was new. An objection that it was irrelevant and immaterial and introduced a new issue was overruled by the court. The witness answered he was told it was a new 1918 car. It appears that this evidence was admitted for the purpose of showing fraud and deceit; that is, the intent with which respondent claimed similar representations were made to him.
“First; that, where motive and intent or knowledge are vital elements in the proof in an action, other transactions showing such knowledge and intent or similar motive are permissible;” and
“Second; that, where there is a scheme to defraud, the practice of such scheme in other instances would be usable to show the possible use of the scheme in the instance at bar.”
There is evidence in the case to show that a new car of the 1918 model was worth several hundred dollars more than a new car of the 1917 model, at the date of the sale to the respondent. The car that was sold was manufactured in 1917. This is not denied by the appellant, who claims the Paige car is not designated by the year of its manufacture, but by a name such as Linwood, Stratford, etc., and that it did not represent to the respondent that the car sold was a 1918 model, but, on the contrary, told him it had been on hand all the winter prior to the sale.
But what difference it could make to the respondent as to whether or not appellant knew better, or intended to deceive, it is difficult to perceive. Had the appellant, through its agent, candidly mistaken the year of the manufacture of the car and that it was unused, and nevertheless misled the respondent in those respects in consummating the sale, under circumstances entitling him to recover, the resulting damage to him would have been the same as that complained of in this suit.
“This instruction was plainly erroneous. If the defendants relied upon the representations of the plaintiff, and were led to believe by such representations that lot 2 contained 36% acres, when in fact it only contained 26% acres, and were induced by such representations to purchase said lot as a lot of 36% acres, it makes no difference whether plaintiff knew such representations to be false or not, he is liable. If he knew the lot did not contain 36% acres, and represented to defendants that it did, he would be guilty of fraud and deceit; but if he did not know it, and believed that the representations he made were true, and defendants, acting upon such representations, were damaged because it eventuated that they were not true, the liability of the plaintiff would be the same. In neither case will*545 he be allowed to retain the benefit flowing from his misrepresentation. Mr. Justice Story thus states the rule: ‘Whether a party thus misrepresenting a material fact knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. ’ 1 Story, Eq. Jur., § 193, and note. See, also, Page v. Bent, 2 Metc. (Mass.) 371; Stone v. Denny, 4 Metc. (Mass.) 151; Milliken v. Thorndike, 103 Mass. 382; Bennett v. Judson, 21 N. Y. 238; Litchfield v. Hutchinson, 117 Mass. 195. In fact this view of the law is so well established that we think it not necessary to comment further upon it.”
The rule was followed in Sears v. Stinson, 3 Wash. 615, 29 Pac. 205; Lawson v. Vernon, 38 Wash. 422, 80 Pac. 559, 107 Am. St. 880, and West v. Carter, 54 Wash. 236, 103 Pac. 21, in which last named case it was repeated :
“And this is the just theory, for the result to the party who is deceived is exactly the same whether the intention of the party upon whose representations he relied was fraudulent or not. ’ ’
While it is true the above cases from this court related to real estate transactions, the same rule applies in cases of sales of personal property.
In keeping with the rule, and because the element of knowledge or intent to. defraud is not essential in this kind of a case, this court, in McKay v. Russell, 3 Wash. 378, 28 Pac. 908, 28 Am. St. 44, held that, in an action to recover money paid upon a contract for the sale of real estate, on the ground that the sale was procured by fraudulent representations, it is inadmissible to show that, in a similar transaction prior thereto, the defendants had made like misrepresentations to another party. In that case, after declaring, “the affirm
“ ‘In some cases, however, evidence has been received of facts which happened before or after the principal transaction, and which had no direct or apparent connection with it; and therefore their admission might seem, at first view, to constitute an exception to this rule. But those will be found to have been cases in which the knowledge or intent of the party was a material fact, on which the evidence, apparently collateral and foreign to the main subject, had a direct bearing, and was, therefore, admitted.””
If in a given case, such as we find this to be, it is unimportant to show knowledge or intent in establishing a cause of action, it is manifestly dangerous, and insidiously unfair to an adversary, to introduce evidence of prior independent conduct for the purpose of convincing a jury that the principal transaction—the one upon which the trial is had—was prompted by an intention to cheat and defraud.
The kindred subject, suggested by respondent’s argument and authorities, of a scheme to defraud, which embraces scienter, motive and intent, is in no way involved in the issues in this case; nor is there any proof or element of conspiracy. The objection to this testimony of the witness Daverso should have been sustained, and we are satisfied that the admission of it was prejudicial and constituted reversible error.
Next, it is claimed the court erroneously admitted, over objections, the testimony of a witness for the respondent as to the values of 1917 and 1918 Paige cars. The contention is, the witness did not qualify as an expert. Upon examination and cross-examination as to his qualifications, he testified that, for twenty-two-years (the last fourteen in Seattle), he had been en
It is assigned that the court erred in denying appellant’s motion for a directed verdict. The record convinces us the case was one for the jury upon the three questions, viz., representations as to the year of the manufacture of the automobile, whether or not it was new or second-hand, and its mechanical condition at the time of the sale.
Lastly, it is argued there was error in the assessment of the amount of recovery. Among other items, respondent sued for $220, alleged to have been paid for necessary repairs. As the verdict and judgment were for the full amount demanded in all particulars, it necessarily included $220 for repairs. It is contended that the only bills paid, presented by respondent to substantiate his claim, amounted to $12.05. But counsel overlooks the fact that the respondent testified, without any objections, there were other payments for repairs, and that altogether they amounted to $220. If it is insisted that the reasonable value of the repairs alleged to have been necessarily made is the test, and not the amount paid therefor, the appellant is not in a position to complain. In the case of Brown v. Blaine. 41 Wash. 287, 83 Pac. 310, it is said:
“It seems to us that the amount paid would, in any event, be some evidence of the reasonable value of the services rendered, and that, if it was not sufficient evidence, that was a matter which should have been presented to the consideration of the jury.”
For the reasons given in considering the first assignment of error, the judgment is reversed and the cause remanded with direction to grant a new trial.
Holcomb, O. J., Parker, Main, and Mackintosh, JJ., concur.