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Miller v. Triangle Volkswagen Inc.

Filed: February 2, 1982.

JAMES L. MILLER
v.
TRIANGLE VOLKSWAGEN, INC., PM DISTRIBUTORS, INC., D/B/A PHIL'S AUTO SALES, AND DONALD D. HARMON



Appeal by plaintiff from Herring, Judge. Judgment entered 19 January 1981 in Superior Court, Durham County. Heard in the Court of Appeals 9 December 1981.

Martin (Robert M.), Judge. Chief Judge Morris and Judge Hedrick concur.

Martin

The plaintiff's first argument on appeal concerns the trial judge's granting of summary judgment in favor of defendant, Triangle Volkswagen, on plaintiff's allegation of common law fraud.

In order to prove that defendant was guilty of fraud the plaintiff at trial must prove: (1) that a defendant made a representation relating to some material fact; (2) that the representation was false; (3) that the defendant knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that the defendant made the representation with the intention that it should be acted upon by the plaintiff; (5) that the plaintiff reasonably relied upon the misrepresentation and acted upon it; and (6) that the plaintiff suffered injury. Odom v. Little Rock & I-85 Corp., 299 N.C. 86, 261 S.E.2d 99 (1980).

In this case plaintiff presented evidence on each element of fraud sufficient to withstand a motion for summary judgment. Plaintiff's evidence tended to show that the defendant through its agent, Harmon, made the material representations to the plaintiff that the car was a low mileage vehicle, with a wholesale value of $1635.00 and that Triangle had performed a safety inspection and minor repairs on the car worth $45.00. Harmon gave to plaintiff an odometer statement which verified the mileage as approximately 24,000 miles.

The plaintiff further presented evidence that these representations were false and that defendant knew they were false or made them recklessly. Phil McLamb, in his deposition, stated that he told Harmon that the car had travelled approximately 124,000 miles, not 24,000 miles. Plaintiff also presented evidence that the automobile was worth less than $1635.00, and that the safety inspection and minor repairs were not performed by defendant.

Plaintiff's evidence tended to show that defendant made these misrepresentations with the intention that they should be

acted on by the plaintiff. The statements were made in a business context for the purpose of selling the car to plaintiff and the salesman Harmon took plaintiff's money on the basis of those representations.

The plaintiff purchased the automobile and drove it to Pennsylvania. This tends to show that plaintiff relied and acted upon defendant Harmon's representations.

Finally, the plaintiff's evidence indicates that he suffered injury. Defendant knew that plaintiff wanted a low mileage car. Plaintiff paid for a car that he believed had 24,000 miles, not 124,000 miles, and he paid for minor repairs and inspection of the car in the amount of $45. Plaintiff got less than he bargained for because of the misrepresentations about the car.

This case is similar to Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486 (1952) in which the court held that evidence tending to show that a dealer represented a car to be in good condition and that it was a "new demonstrator" driven only 1,000 miles, but that in fact the car had been sold to a person who drove it 8,000 miles and then turned it back to the dealer, and that it was not in good condition, was sufficient for submission to the jury on the issue of actionable fraud and deceit in the sale of the car.

In a similar fraud case, Roberts v. Buffaloe, 43 N.C. App. 368, 258 S.E.2d 861 (1979), the plaintiff alleged that defendant car dealer sold him a car with an odometer reading of 32,821 miles but knew that the true mileage was in excess of 77,000 miles. The Court held that the trial court erred in directing a verdict for defendant where plaintiff's evidence tended to show that defendant knew that the odometer had been replaced but failed to affix the notice required by N.C. Gen. Stat. § 20-346. The evidence also tended to show that defendant failed to deliver to plaintiff the statements concerning unknown mileage and alterations to the odometer reading required by N.C. Gen. Stat. § ...


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