
    [No. 17835.
    Department One.
    August 28, 1923.]
    R. B. Fosburg, Respondent, v. C. W. Couture, Appellant.
      
    
    Fraud (8, 22) — Means of Knowledge of Parties — Evidence—-Sufficiency. The purchaser of an automobile may rely upon anu recover damages for representations that the car had been driven only by the seller and a distance of only 512 miles, when it had been driven by various drivers several thousand miles, and enough to wear out some of its parts, notwithstanding the buyer made an investigation and trial of the car. '
    Appeal from a judgment of the superior court for YaMma county, Holden, J., entered October 23, 1922, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.
    Affirmed.
    
      Ralph B. Williamson, for appellant.
    
      Snively & Rounds, for respondent.
    
      
       Reported in 217 Pac. 1001.
    
   Bridges, J.

— This was an action for damages growing out of the sale of an automobile by the defendant to the plaintiff. The former appeals from a judgment based upon the verdict of a jury.

The testimony is not very greatly in dispute. The appellant made it a part of his business to buy and sell automobiles, both new and second-hand. The respondent, while not being a mechanic, had had considerable experience with the operation of automobiles, and had considerable knowledge concerning their parts. The appellant represented to the respondent that his Pilot automobile was a new one, in good mechanical condition in every way, and had not been operated more than 512 miles, as indicated by the speedometer on the car, and that he only had driven it. It was given into the possession of the respondent with the privilege of operating it for two or three days or longer and making snch examination of it as he might choose, before purchasing. After having so operated the car, respondent returned it to the appellant, claiming that the motor had a knock in it. He was assured that such was not the case, and that the machine was in good condition, and thereupon respondent purchased it, paying a part of the purchase price down and agreeing to make certain deferred payments. After operating the car for about two weeks, respondent offered to return it, claiming that appellant had misrepresented its condition. He produced testimony tending to show that, within a few days after he bought the car, it developed mechanical defects in that the worm gears on the oil pump were not properly assembled, and the dogs in the clutch end of the generator of the Delco starting system were worn; that parts of a steel plug were found in the differential, that there was a distinct knock in the motor, that the car had been driven several thousand miles, or, at any rate, very much farther than the 512 miles represented by the appellant, and that various persons had driven it before the respondent purchased. Appellant very frankly admits that he made most of the alleged representations, and we are impressed with the view that he made them honestly but mistakenly..

Appellant contends that respondent was given an opportunity to make, and did make, an independent investigation and examination of the car, and did not rely on any representations made by him. If this case stood solely upon certain alleged defects, such as the knock in the motor, we might be disposed to hold that a nonsuit should have been granted. But it is plain that the respondent had a right to, and did, rely upon the representations that the car was new and had been operated only 512 miles and bad been driven only by appellant. Sncb representations were very material ones. Anyone wbo bas had anything to do with automobiles knows that the average car which bas bad miscellaneous drivers for a distance of several thousand miles is not as good a car as one which bas bad but one careful driver and bas traveled only 500 miles. The testimony tended to show that the car bad been driven to such an extent as to wear out, or at least damage, certain of its parts. We cannot say, as a matter of law, that because a purchaser makes an independent investigation before purchasing an automobile he may not rely upon representations as to the distance the car bas been operated, particularly where that representation agrees with the reading on the speedometer. Nor can we say, as a matter of law, that one bas not been defrauded wbo purchases a car upon the representation that it bas traveled but 500 miles, when the testimony tends to show that it bas been driven several thousand miles, and that such driving bas damaged it.. We have no doubt these were questions to be submitted to the jury.

Nor can we agree with appellant’s contention that there was no testimony upon which the jury could fix respondent’s damages, or that the amount of the damage fixed by the jury was excessive. There was ample testimony to support the verdict.

The judgment is affirmed.

Main, O. J., Holcomb, Mitchell, and Mackintosh, JJ., concur.  