Hooning v. Henry

213 P. 139 | Or. | 1923

McBRIDE, C. J.

1. The principal contention here is that the court erred in instructing the jury that the measure of damages would be the difference between the agreed purchase price of the automobile, namely, $1,200, and the reasonable market value of the machine at the time of purchase, and in refusing to instruct that the measure of damages was the difference between the value of the property as represented and its actual condition. We are aware that there is a difference among the courts as to the measure of damages in cases of misrepresentation, but this court is committed by the case of Southern Oregon Orchards Co. v. Bakke, 106 Or. 20 (210 Pac. 858), to the rule laid down by the Circuit Court, to which we still adhere.

It is also objected that the court erred in not excluding from the jury consideration of the difference in model as shown in the testimony. It was shown that defendant, who was a dealer in automobiles, represented to plaintiff, who was comparatively ignorant of automobiles, that this machine was a 1918 model when in fact it was a 1915 model and the testimony indicates that such a model would render the machine less valuable in the market than the 1918 model represented, although there was no testimony as to the exact amount of such difference. But several witnesses testified that the machine as it stood was not of greater value than over $350 or $400. In making this estimate they were taking into consideration everything pertaining to the machine, its model, its condition, and every factor that went to make up its value. The complaint was for general damages, the only specification of special damages relating to the cost of new carbureter and the expense of having the exhaust manifold welded, which neither the testimony nor the pleading show had a tendency materially to increase the value of the machine or to make the motor do service.

Exception was taken to the refusal of the court to give the following instruction:

“It is claimed on the part of the plaintiff that the defendant represented that the automobile was worth $1,200. I instruct you that such representation was not a warranty as to the value of said automobile, but was the opinion, if such representation, was made, of the defendant.”

The instruction was faulty in several respects. In the first place it proposed to submit to the jury the question as to whether the defendant represented that the automobile was worth $1,200, concerning which there was no testimony beyond the fact that the defendant asked $1,200 for it. We find no case in which the mere asking of a price for an article is construed as a representation as to its value. Every man has the right to ask any price he sees fit for the wares he has to sell and the matter of fixing the price may he predicated upon the supposed usefulness of the article or some sentimental value that the party may place upon it, or what he thinks he can get for it from a prospective purchaser. A splinter from King Tutankhamen’s mummy-ease might have small value to some unsentimental being who would merely regard it as a piece of kindling wood, whereas to a searcher for the antique with a memory of the hundreds of centuries that had passed it might possess great sentimental value as a relic, and, if we take the evidence of the plaintiff in this case as to the condition of the machine, it also might possess some value as an antique, to be placed alongside of Tutankhamen’s recently discovered chariot. The defendant had the right to put any price he pleased upon it, either as an antique or as a useful article, without submitting himself to the charge of false representations in regard to it, but where such representations are made, and this request assumed that there might be testimony to submit to the jury on that subject, they are to be taken in connection with other representations, as, for instance, if the defendant represented that the automobile had been recently repaired and was in good running condition and these representations were false,- and, in addition to these, stated that it was worth $1,200' when any man of common sense would know that in its condition it was not worth more than from $350 to $450, the representations might be construed not as an opinion but as a representation of a fact, because when a man essays to give an opinion there is included in that proposition the other proposition that it really is his opinion and not a false statement that he has that opinion when- in truth and in fact he knows better.

In addition to this the request in itself was calculated to mislead the court by assuming that there was evidence to submit to the jury on that subject and it was properly refused, although perhaps not properly on the grounds on which the court refused it. There was no exception to the instruction of the court given upon this subject, which rather by implication assumed that the jury might consider such a representation, if any were made, the only objection being to the refusal of the court to give the instruction as requested.

If a request had been made to the court to take the matter entirely away from the jury so far as the representation of value was concerned and such request had been refused an exception thereto might properly have been sustained, but such is not the case here, and the refusal of the court to give the instruction as requested must be upheld as it is not the duty of the court to patch up a request to make it conform to the law of the case.

The other instructions refused seem to be sufficiently covered by the general instructions given by the court and the judgment is therefore affirmed.

Affirmed.

Bean, Brown and McCourt, JJ., concur.