Harper v. Silver

SHEPARD, J. This is an appeal by defendant Allen Silver, from a judgment for damages in favor of plaintiff E. S. Harper, on account of alleged misrepresentation in the sale of a boat.

Facts

The facts shown by the record before us are substantially as follows: On May 2, 1958, Silver was the owner of a 40-foot, two-engine, twin-screw Chris Craft pleasure cruiser. On that date he executed a written contract to sell the boat to plaintiff, E. S. Plarper. Richardson Yacht Anchorage, Inc., a corporation, and Ed Richardson, hereinafter called Brokers, were acting as Silver’s agents in advertising and selling the boat. Prior to sale, Silver represented to Brokers and to Harper that the boat was equipped with twin 275-horsepower Chrysler marine motors. Harper, believing said representation to be true, bought the boat for the agreed price of $22,500. The boat was actually equipped with one 250-horsepower and one 275-horsepower engine. The cost, to Harper, of replacing the 250-horsepower engine with another 275-horsepower engine, which [106]was done a short time after Harper discovered that the engines were mismatched, was $2,270.44. Expert testimony was received showing that the difference in market value between the boat as represented and the boat as it actually was sold was measured by the cost of replacement of the smaller engine. The Brokers relied on the written listing from Silver, made no investigation of their own, and made the representations to Harper solely on the basis of the information given to them by Silver. Harper believed the representations of Silver, would not have bought the boat if he had not believed them, and consummated the purchase. Nonsuit was granted as to the Brokers and they were awarded judgment for $500 attorneys’ fees against Silver. The judgment awarded Harper $2,229.56 damages against Silver. Silver appeals.

Material Misrepresentation

In his brief, Silver opens via the statement that he does not contend that the evidence might not be sufficient to support a finding of material representation as to engine horsepower. In view of the time-honored rule that on appeal “all conflicts must be resolved in favor of the questioned findings and all reasonable conflicts indulged in their support” (Butler v. Nepple, 54 Cal.2d 589, 597 [7] [6 Cal.Rptr. 767, 354 P.2d 239]), and that if there is a conflict in the evidence the determination of the weight of the evidence by the trial court is conclusive (Luz v. Lopes, 55 Cal.2d 54, 62 [8] [10 Cal.Rptr. 161, 358 P.2d 289]), we agree that the evidence is sufficient. However, Silver immediately after this opening statement contends that the evidence was insufficient to show what the horsepower of the engine was. With this contention we cannot agree.