Tbe defendant challenges tbe sufficiency of tbe plaintiff’s evidence to withstand its motion for judgment as of nonsuit interposed at tbe close of plaintiff’s evidence and renewed at tbe close of all tbe evidence. In our opinion, however, when plaintiff’s evidence is considered in tbe light most favorable to him, as it must be on such motion, it is sufficient to carry tbe case to tbe jury. Chambers v. Allen, 233 N.C. 195, 63 S.E. 2d 212; Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251; Grier v. Phillips, 230 N.C. 672, 55 S.E. 2d 485.
Tbe defendant excepts and assigns as error tbe refusal of tbe trial court to comply with its written request to the effect that if tbe jury believed tbe evidence and tbe facts to be as testified, to answer tbe issue with respect to fraud and misrepresentation in tbe procurement of tbe release in favor of tbe defendant.
Tbe defendant argues that Mrs. Pierce, agent for tbe plaintiff, and tbe adjuster, agent for the defendant, agreed that tbe damaged automobile *571might be repaired by Ventura and that its agent only advised Mrs. Pierce that Ventura was a reputable automobile repair man and would make satisfactory repairs. Therefore, it contends that the misrepresentations made in its behalf, if any, were only promissory in nature and insufficient to support an allegation of fraud, citing Mitchell v. Mitchell, 206 N.C. 546, 174 S.E. 447.
The general rule in this respect is to the effect that an unfilled promise cannot be made the basis for an action for fraud. Davis v. Davis, 236 N.C. 208, 72 S.E. 2d 414; Williams v. Williams, 220 N.C. 806, 18 S.E. 2d 364; Shoffner v. Thompson, 197 N.C. 664, 150 S.E. 195; Pritchard v. Dailey, 168 N.C. 330, 84 S.E. 392; 23 Am. Jur., Fraud and Deceit, section 38, page 799, et seq. The rule, however, is otherwise if the promise is made with no intention to carry it out, and such promise constitutes a misrepresentation of a material fact and the promisee is induced thereby to act upon it to his injury. Davis v. Davis, supra; Williams v. Williams, supra; Mitchell v. Mitchell, supra; Trust Co. v. Yelverton, 185 N.C. 314, 117 S.E. 299.
In the instant case, the consideration which the plaintiff was to receive upon the execution and delivery of the release was not to be in money, but in the return of his automobile duly and properly repaired. As stated in Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 6, page 500, “. . . where the insurer elects to repair the damaged automobile and represents, at least tacitly, that it will place the vehicle in the condition that it was in previously, the insured has no choice but to acquiesce, and the original contract of the parties is converted into a new one, under which the insurer is bound to repair the automobile and restore it to its former condition.” The plaintiff’s car, according to the record, has not been so restored. The defendant’s evidence establishes the fact conclusively that when the plaintiff’s automobile was delivered to his wife on 13 September, 1952, it had not been repaired as contemplated under the provisions of the insurance policy in the event the insurer elected to have the ear repaired, as it did in this ease, in lieu of payment for the damages resulting from the collision. The adjuster of the defendant not only authorized the return of the car, after the execution and delivery of the release, to Ventura’s Auto Center for reinspection and additional repairs if necessary, but his testimony with respect to the condition of the car when returned was as follows: “I looked over the car after it was wrecked and also after it was returned by Mrs. Pierce following the repairs. It needed repairs in several instances. I had several independent agencies give us an estimate and two dealers gave us statements that the car was not properly repaired and needed additional work.”
In light of the evidence adduced in the trial below, the fact that Mrs. Pierce delivered the release to Mr. Ventura before requesting permission *572to try out tbe car would not, in view of bis immediate refusal to permit tbe car to be tried out, warrant a refusal on tbe part of tbe court to submit the issue as to misrepresentation and fraud in its procurement. Even so, in our opinion, tbe defendant waived tbe provisions of tbe release by authorizing tbe return of tbe car for reinspection and further repairs, if necessary, and we so bold. Therefore, tbe plaintiff bad a right to maintain an action for damages against the defendant for breach of the insurance contract when tbe car was not properly repaired and tendered to him within a reasonable time. Hence, tbe finding to tbe effect that tbe execution and delivery of tbe release was obtained by fraud and misrepresentation becomes immaterial, and tbe assignment of error in respect thereto is overruled.
Assignments of error Nos. 4, 5, 6, and 1 are based on exceptions to tbe charge with respect to damages. Tbe challenged portions of tbe charge are to tbe effect that tbe plaintiff is entitled to recover, if be is entitled to recover at all, tbe difference in tbe fair market value of tbe automobile immediately before it was damaged in the collision, and tbe fair market value after it was repaired at Ventura’s place of business for tbe price paid by tbe insurance company, plus $50.00 paid by tbe plaintiff.
The defendant contends that this charge was not sufficient to include tbe additional repairs made to tbe automobile after it was returned to Ventura’s place of business. We do not concur in this view, in light of tbe only evidence as to the fair market value of tbe car after tbe collision, which was that of if. S. Cridlin, the operator of an automobile repair shop, paint shop, and an agency for tbe sale of Kaiser-Erazer cars including Henry J, in Elizabeth City, North Carolina. This witness testified that tbe fair market value of plaintiff’s car immediately prior to tbe collision was $1,500.00; that at tbe time of tbe collision a new 1951 Henry J automobile would have cost a little over $1,800.00; that be inspected tbe plaintiff’s ear three days after tbe collision and that it bad a fair market value of $150.00 as junk; that be went to Ventura’s place of business in Portsmouth, Virginia, which appeared to be a junk yard, and inspected plaintiff’s car after the additional repairs bad purportedly been made; that tbe car was still not in proper repair and bad a fair market value of only $300.00 to $350.00. Tbe court called tbe jurors’ attention to this evidence and pointed out that Mr. Cridlin testified that after the car bad been repaired twice at Ventura’s place it bad a fair market value of around $350.00. Consequently, we do not think any prejudicial error that would warrant a new trial has been made to appear. Barton v. Farmers Insurance Exchange (Mo. App.), 255 S.W. 2d 451. Hence, in law, we find
No error.