Bennett v. Whippett-Knight Co., 198 N.C. 98 (1929)

Dec. 11, 1929 · Supreme Court of North Carolina

198 N.C. 98

RAY BENNETT v. WHIPPETT-KNIGHT COMPANY.

(Filed 11 December, 1929.)

Fraud A b — Purchaser having equal means of information and opportunity to inspect car may not maintain action for fraud.

Where the evidence discloses that the purchaser of a second-hand automobile had equal means of information with the seller as to the age and running condition of the car, and that the purchaser was not prevented from making a full and thorough examination of the car before the contract of purchase was entered into: Held, the purchaser may not successfully maintain an action for fraud for representation as to its age or running condition.

Civil actioN, before MacRae, Special Judge, at August Term, 1929, of YaNCEY.

Plaintiff alleged that on 16 April, 1929, be exchanged bis Overland car witb tbe defendant in return for “one 1926 model Oldsmobile.” Plaintiff further alleged tbat at tbe time of tbe exchange tbe defendant represented tbat tbe Oldsmobile “was a 1926 model, was in good condition, and in good running order.” Tbe plaintiff further alleged tbat in truth and in fact said car was a 1925 model, and not in good running condition; tbat bis Overland was worth $125 at tbe time of tbe exchange, and tbat be bad paid $30 in cash and $9.30 for repairs, making a total of $164.30, which be sought to recover in this action.

At tbe conclusion of plaintiff’s evidence there was judgment of non-suit. and tbe plaintiff appealed. '

Watson & Fonts for plaintiff.

McBee & McBeeand Chas. Hutchins for defendant.

Pee CuRiam.

Tbe record discloses tbat tbe plaintiff was a graduate of a junior college and engaged in teaching school. On 16 April, 1929, at tbe time of exchanging cars, plaintiff signed an affidavit which contained a statement tbat tbe Oldsmobile be received from tbe defendant was a 1925 model. He testified tbat be signed this paper-writing upon tbe representation of tbe bookkeeper of defendant tbat a controversy bad arisen between “tbe Oldsmobile people and tbe State of North Carolina-, tbat it was sold as a, 1925 model, and tbe State of. North Carolina gave title for the year tbe car was sold and not for tbe model of tbe ear.” Plaintiff further testified: “I drove tbe car some before I traded for it. . . . After I bad tried it out I told them to go ahead and fix up tbe papers, and I signed tbe papers at Spruce Pine witb an explanation which tbe bookkeeper gave to me. ... I bad every opportunity to look into tbe car and investigate it, but Mr. Sbuford said it was in good condition, and I took bis word for it.”

We do not tbink tbe evidence of fraud was sufficient to be submitted to tbe jury. It is obvious from tbe evidence tbat tbe parties bad equal means of information, and tbat tbe plaintiff was not prevented from making a full and tborougb examination and test of tbe property before tbe contract was entered into. Peyton v. Griffin, 195 N. C., 685, 143 S. E., 525; Cromwell v. Logan et al., 196 N. C., 588, 146 S. E., 233.

Affirmed.