Federoff v. Birks Bros.

PLUMMER, J.

Action to recover balance of $950 alleged to be due upon a promissory note executed and delivered for the sum of $1,620, by the Birks Bros., to the defendant H. B. Whitten, and assigned by him to the plaintiff W. R. Federoff. The note was given on account of the purchase price of a 2%-ton U. S. truck sold upon contract. The defendants interpose the defense of fraud and misrepresentation. The action was tried before a jury, and at the conclusion of the defendants’ testimony upon the defense of fraud and misrepresentation, the court directed the jury to bring in a verdict in favor of the plaintiff and cross-defendant and against the appellant in the sum of $950, and also directed the jury to fix the amount of the attorneys’ fees. The jury brought in a verdict as directed and fixed the attorneys’ fees at the sum of $50. - From this judgment the defendants Birks have appealed. The appellants in their answer set up a number of specifications of fraud and misrepresentation, but at the trial attempted only to prove two of the items thereof, to wit: That the plaintiff’s assignor represented the truck to be in good running condition, and, also, that the truck would carry a tractor weighing about 7,500 pounds. The truck involved in this transaction was a second-hand machine and had been used about six weeks. The evidence shows that, in response to an advertisement inserted in a Sacramento paper by the respondent Whitten that he had a

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second-hand truck for sale, the appellants called upon said Whitten at his office in the city of Sacramento, examined the truck and entered into negotiations with him culminating in the purchase thereof. During the course of the conversation leading up to the purchase, it is claimed by the appellants that the respondent Whitten made certain false and fraudulent representations both as to the capacity of the 2%-ton truck to carry a tractor weighing 7,500 pounds and also as to the condition of the truck. The testimony of John T. Birks, who appears to have conducted the negotiations on the part of the appellants,- on direct examination, concerning the carrying capacity of the truck, is set out in the transcript as follows: “A. I told him what make of a tractor it was and told him just what it weighed. Q. What was it? A. It weighed on the road 7,600 pounds with a load. Q. And did you tell him with a load ? A. It was about 7,500 with a load. Q. What was said about the road between your place and Santa Rosa? A. I told him the kind of a road we had to travel over and he was acquainted with it and he said he would guarantee to haul that tractor over that road.” The same witness, upon direct examination as to the condition of the truck, testified as follows: “A. He said it was in good condition and guaranteed it to be in good condition and would do that work for which we wanted it.” Upon cross-examination this witness testified as follows: “A. He guaranteed it to haul that tractor and told me—I told him what it weighed and he guaranteed it to haul that tractor and I told him of the other work we wanted to do with it and he said it would do that work.” It further appears from the testimony that one of the purposes for which the appellants wanted the truck was to haul the tractor over the road mentioned between two farms. As to the condition of the truck, the witness testified as follows: “Q. Now in what particulars was the truck not in good running condition when you took it across the bridge into Yolo County? A. You say why wasn’t it in good running order? Q. Why wasn’t it in good condition, in what way? A. I couldn’t say there was anything the matter with it when we got across there. Q. In what particulars was it not in good running condition when you took it across the bridge? A. I supposed it was in good' running condition. Q. Well was it? A. It seemed to be when we took it across. Q. You think it was? A. It seemed to be. Q. You testify now,