Dassing v. Fred Frederick Motors, Inc.

Marbury, J., delivered the opinion of the Court. Edward H. Dassing and his wife, Doris Dassing, filed a declaration on November 27, 1962, in the Circuit Court for Prince ⁶²³ George’s County, alleging that Fred Frederick Motors, Inc. had fraudulently sold to them a 1961 Plymouth station wagon, representing to them that it was a new and unused automobile, for the sum of $2,633; that they relied on this representation as to‘ newness, and that such representation was known by the seller to be untrue. Plaintiffs-appellants in their declaration tendered to defendant the Plymouth station wagon and claimed compensatory damages of $3,000 and punitive damages of $15,-000. On January 5, 1965, a jury trial was held, Judge Eoveless presiding.

At the close of the plaintiffs’ case the trial judge granted defendant’s motion for directed verdict on the ground that the plaintiffs had not proven what damages were caused by the fraudulent conduct of the defendant. From the judgment entered following the motion, the appellants appealed. At the trial, appellants presented evidence that they had, on October 5, 1961, purchased a 1961 Plymouth from Fred Frederick Motors, Inc. for the sum of $2,575, plus tax of $51.50, and notary and other incidental expenses of $6.50. The Dassings testified that an, agent of the appellee had represented this car to be new and unused, that this representation was relied on by them, and that absent a belief that the car was new they would not have purchased it.

After the purchase they learned from the Department of Motor Vehicles that the car was not new, as it had been previously sold by Fred Frederick Motors, Inc. to a third party, who kept the car for three and a half months before it was re-acquired by the appellee. As to damages, the appellant presented proof that someone had represented on the application for transfer of title from the appellee to the appellants that the purchase price of the automobile was $2,300. The signature on this application appears to be that of Mrs. Dassing, one of the appellants, but she denied that she signed it, and the signature was notarized by Fred Frederick, president of the appellee corporation. Appellants’ only expert witness as to damages was Fred Frederick, who testified that the dealers’ list price for a new car of the same make and model as the one sold to the Dassings was approximately $3,350 in 1961.

Frederick also testified that on October 5, 1961, the date of the purchase by the Dassings, which would ⁶²⁴ be approximately at the end of the model year, the price of a new car of the model and type that the Dassings bought would be about $2,900-$3,000. He was not asked his opinion as to the value of the used car which the appellants purchased. The sole question on this appeal is whether the trial court was correct in directing a verdict for the defendant-appellee due to appellants’ failure to prove damages. We think that he was.

The proper measure of damages in this State, in an action such as this where fraud or misrepresentation is alleged, is the difference