Miller v. Modern Business Center

[634]

Opinion

JOHNSON, J.

Plaintiff appeals from a judgment for defendant after a court trial. The issues on appeal are:

1. Did the court err in excluding from evidence a commercial publication offered by the plaintiff?

2. Was there sufficient evidence to support the court’s findings of fact?

3. Should plaintiff be sanctioned for prosecuting a frivolous appeal?

(The second and third issues are discussed in the unpublished portion of this opinion.)

Facts

In April 1979 plaintiff Miller purchased a Sharp model 810 copying machine and a service agreement from the defendant Modern Business Center. Subsequently Miller became dissatisfied both with the performance of the machine and the service rendered by defendant. He sued for breach of contract and fraudulent misrepresentation. At the core of Miller’s complaint is his allegation that defendant represented the model 810 as the most up-to-date and technologically advanced model available when, in fact, defendant knew or should have known that the model 810 had been superseded by a model 811 which was then available or would be available in a short time.

The trial court rendered judgment for defendant.

The court specifically found that plaintiff failed to meet his burden of proof that the model 810 was not the most technologically advanced Sharp model available at the time of his purchase.

Decision

1.

Documentary evidence offered by plaintiff to prove the availability of the new model 811 copier was properly excluded on hearsay and relevancy grounds.

Plaintiff’s main contention in this case is that defendant falsely represented that the model 810 copier he bought was the most up-to-date model available. As evidence of the falsity of this representation plaintiff sought to introduce a page from a book published by the Datapro Research Corporation. That document which was published in 1981 purports to show a