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Roberts v. Buffaloe

Filed: October 16, 1979.

JAMES M. ROBERTS, PLAINTIFF
v.
ROGER BUFFALOE, T/A BUFFALOE'S NEW AND USED CARS AND DONALD W. ROBERTSON, DEFENDANTS V. JAMES L. KENNEDY AND JAMES W. DURHAM, A/K/A "WHITEY" DURHAM, PARTNERS T/A KENNEDY MOTOR SALES, THIRD-PARTY DEFENDANTS



Appeal by plaintiff from Barefoot, Judge. Judgment entered 13 July 1978 in District Court, New Hanover County.

Vaughn, Judge. Judges Erwin and Hill concur.

Vaughn

The court should not have directed a verdict in favor of defendant Buffaloe.

A section of the Vehicle Mileage Act requires that if an odometer is replaced, it must either reflect the correct mileage or a statement must be affixed to the left door frame specifying the mileage prior to replacement and the date of replacement. G.S. 20-346. The same act requires that the transferor of a motor vehicle deliver to the transferee:

"(5) A statement that the mileage is unknown if the transferor knows the odometer reading differs from the number of miles the vehicle has actually traveled, and that the difference is greater than that caused by odometer calibration error;

(6) A statement describing each known alteration of the odometer reading, including date, person making the alteration, and approximate number of miles removed by the alteration . . . ." G.S. 20-347(a)(5) and (6).

A private civil action is provided against one who "with intent to defraud" violates any of the requirements of the Vehicle Mileage Act. G.S. 20-348. The liability imposed is an amount equal to the sum of:

"

(1) Three times the amount of actual damages sustained or one thousand five hundred dollars ($1,500), whichever is the greater; and

(2) In the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court." G.S. 20-348(a)(1) and (2).

Plaintiff's evidence, if believed, tends to show that Buffaloe knew that the odometer had been replaced but failed to affix the notice required by G.S. 20-346. It also tends to show that he failed to deliver to plaintiff the statements required by G.S. 20-347(a)(5) and (6). If that evidence is believed, it must then be determined whether defendants' violations of the requirements of the statute were made with the intent to defraud. The weight to be given to

the testimony and the inferences to be drawn from the evidence are matters for the jury, ...


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