
    G & M INC., T/A Gabby’s Auto Discount, Appellant, v. Floyd W. HUFFMAN, Appellee.
    No. 2686.
    Municipal Court of Appeals for tlie District of Columbia.
    Argued Jan. 80, 1961.
    Decided April 28, 1961.
    John T. Bonner, Washington, D. C., for .appellant.
    Ralph B. Shirley, Washington, D. C., for appellee.
    Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § 11-776(b).
   QUINN, Associate Judge.

Appellee’s complaint, reciting separate counts of fraud, breach of contract, and conversion, prayed for compensatory and punitive damages on the basis of alleged misconduct in an automobile sales transaction. In rendering a verdict for appellee, the jury apparently accepted the following testimony as true:

Orí October 8, 1959, appellee went to Gabby’s Auto Discount to buy a used car. After looking about the lot, he filled out a credit application form. Appellee then left but returned the following day. Told that his credit had been approved, he decided to purchase a 1956 Buick for $1,495. A salesman thereupon executed a bill of sale under terms allowing appellee $300 for his old car and providing that he pay the entire balance of $1,195 on October 13, four days later. Only partially reading the paper, he signed believing it to be a form to obtain financing. There was no testimony that the writing was incomplete when he signed or that was subsequently altered in any way. There-was no testimony that the written agreement was concealed from him or that he was dissuaded by word or by deed from reading it. According to appellee, appellant’s salesman telephoned him on October 13, the day that payment was due, and declared that the deal was off because appellee had given false information about his financial status. Ap-pellee was also informed that his old car could not be returned because it had been sold to another party for $75.

Testimony from appellant substantially contradicted the above. An officer of the corporation denied that his firm had repudiated the contract or that there had been any oral agreement to extend appellee credit on his purchase. He stated that appellee had volunteered to procure his own financing and pay cash, as the written agreement provided.

After the evidence had been presented the trial judge called both attorneys to the bench and advised them that he intended, on his own motion, to submit the case to the jury on another theory, that of quasi-contract. Over appellant’s protest, he charged the jury on this proposition. In addition, he gave an instruction authorizing an award of punitive damages if it were found that appellant’s agents had acted maliciously. The jury awarded appellee $1,329.

Whether the law covering quasi-contracts and punitive damages warranted, in theory, the relief granted does not concern us here. Aside from this question, it was manifestly improper for the trial court sua sponte and arbitrarily to have injected a new theory of recovery into the proceedings, especially after the trial of issues bearing upon an express contract had already been concluded. We agree, as the trial court stated, that appellee’s version of the facts did not show fraud or breach of contract for which damages might be awarded. However, it was the duty of the trial court to rule upon this failure of proof, not to reform appel-lee’s case. The trial court should have directed a verdict in favor of appellant. Acting as it did only compounded error.

Reversed and remanded with instructions to enter judgment for appellant.  