Olcott & Read v. Choate , 199 Ky. 226 ( 1923 )

Opinion of the Court by

Chief Justice Sampson—

Affirming.

This appeal results from litigation growing out of an exchange of Hudson automobiles, in Fulton, in August, 1920. Appellants Olcott and Read were agents for the Hudson ear and also ran a garage. Appellee Choate had an old Hudson ear. When he entered appellant’s giarage in August, 1920, with his old car, one of the salesmen suggested to him that the garage would like to trade Choate a new oar for the old one. Choate was interested and soon made a trade whereby he gave his old car and note of $2,150.00 for the new car of appellants. Within a short time appellee learned, as he averred and testified, that the car which he bought as new, model 1920, was not in fact new or made in 1920; on the-contrary, the car had been sold in May by appellants to one of their customers for the price of $2,600.00 ;• that the purchaser used the car for about three months and resold it to appellants at about $2,000.00; that the list price of that make of car at that time was not $2,950.00, as represented' by appellants, but a much smaller ,sum.

The answer denies the averments of fraud and misrepresentation; that the oar was second-handed and that it was not good as new; denies that the list price was different from the price at which the ear was sold to appellee.

The motion for new trial contained several reasons why it should be sustained, including an attack on the instructions, but none of these are seriously relied upon here save the failure of the court to direct a verdict in favor of appellants because of the insufficiency of the appellee’s evidence. The evidence is conflicting but there was enough supporting plaintiff’s contentions to sustain the verdict of the jury. We are not authorized to disturb a verdict of a properly instructed jury, unless it is flagrantly against the evidence, which is not true here.

Appellants in their brief admit that the instructions, as corrected and certified by the trial judge, are properly copied, but insist that they do not embody the law. We have examined them carefully and find no fault in them. The measure of damages instruction as copied in the original bill of exceptions is erroneous, but with this error, which the copyist admitted and corrected, removed, the instructions substantially state the law of the case.

Judgment affirmed.