Gaffney v. Graf

NOURSE, J.

Plaintiffs sued the defendants for damages for fraud growing out of the exchange of two automobiles. The defendants’ cross-complaint against the plaintiffs also charges fraud in the same transaction. The trial court found that both parties were guilty of concealment of facts’ material to the exchange and denied recovery to both. The

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defendants appealed from that part of the judgment “wherein and whereby it is and was decreed that defendants and cross-complainants take nothing in said action.” The appeal is based upon a record prepared under section 953a, Code of Civil Procedure.

The facts of the ease are that on May 27, 1921, the plaintiffs sold a new Owen Magnetic automobile to defendants for the sum of $7,750, which was covered by a payment of $4,000 in cash and the delivery of a second-hand Daniels automobile, which was taken in the transaction at a valuation of $3,750. This Daniels car was represented to the plaintiffs as being a 1920 model, whereas in truth and fact it was a 1919 model. The allegations of the complaint are that if the Daniels’ car had been as represented it would have been of the value of $3,750, but that being a 1919 model it was not worth more than the sum of $1,750. The plaintiffs were automobile dealers and soon after the delivery to them of the Daniels’ car they made a sale of it, but the purchaser thereof returned the car to the plaintiffs soon thereafter when he discovered that it was a 1919 model. The plaintiffs canceled their sale with this customer and thereafter sold it as a 1919 model for the sum of $1,500, which it was shown was.a fair value for the car at that time.

The fraud on which the defendants relied in their cross-complaint was the concealment on the part of plaintiffs’ agent of the fact that the Owen Magnetic car was manufactured by a factory which was at that time in the hands of a receiver. The defendant, F. O. Graf, testified that if he had known that fact he would not have accepted the Owen Magnetic car in the trade. However, it appears from his own testimony, and this is not disputed in any way, that he used the car for a period of five or six' months after he had learned that the parent company was in the hands of a receiver and that he then traded this car with $500 in cash for a second Owen Magnetic ear manufactured by the same company, which was still in the hands of a receiver, and which was taken in at a valuation of $9,300. It also appears from his testimony that while he was using the car the plaintiffs traded to him he expended about $700 in alterations and repairs. Allowing this in the second trade, it appears that in addition to six months’ use of the car which the plaintiffs traded to them the defendants made a