Garland v. Penegar , 235 N.C. 517 ( 1952 )

70 S.E.2d 486 (1952) 235 N.C. 517

GARLAND
v.
PENEGAR.

No. 525.

Supreme Court of North Carolina.

April 30, 1952.

Shannonhouse, Bell & Horn, Charlotte, for plaintiff, appellee.

J. C. Sedberry, Charlotte, for defendant, appellant.

DEVIN, Chief Justice.

It is apparent from an examination of the record that the plaintiff offered sufficient evidence to carry the case to the jury on the issue of actionable fraud and deceit, and that defendant's motion for judgment of nonsuit was properly denied. Whitehurst v. Life Ins. Co., 149 N.C. 273, 62 S.E. 1067; Ward v. Heath, 222 N.C. 470, 24 S.E.2d 5; Gray v. Edmonds, 232 N.C. 681, 62 S.E.2d 77.

The defendant assigns error in the court's charge to the jury, particularly on the issue of damages. It is urged that the court failed properly to instruct the jury as to the measure of damages and failed to apply the rules of law applicable to the evidence in the case as required by G.S. § 1-180. While the form and manner in which the instructions were given were open to criticism, we are unable to reach the conclusion that the defendant was prejudiced thereby. We gather the impression from reading the court's charge as set out in the record, and the jury's response thereto, that they sufficiently understood that the measure of damages was the difference between the real value of the automobile as and when purchased and the value it would have had if it had been as represented. May v. Loomis, 140 N.C. 350, 52 S.E. 728; Kennedy v. Highpoint Savings & Trust Co., 213 N.C. 620, 197 S.E. 130; Hutchins v. Davis, 230 N.C. 67, 52 S.E.2d 210. It was stipulated that the sale price of the automobile was $2,434.60, and the plaintiff testified its market value—its real value—in the condition it was when he purchased it was $1,800. The jury accepted the plaintiff's estimate and wrote in answer to the issue $634.60.

While the rule for the admeasurement of damages for fraud in the sale of personal property should have been given as a specific charge, yet when it was stated with substantial accuracy as a contention, and was apparently fully understood and acted upon by the jury, we are unable to perceive resultant harm to the defendant, or that the verdict was improperly influenced. The burden is upon the appellant not only to show error but also to make it appear that the result was materially affected thereby to his hurt. Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; Stewart v. Dixon, 229 N.C. 737, 51 S.E.2d 182; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863.

The defendant noted exception to the statement by the court in his charge to the jury that the plaintiff said the market value of the car "if it had been as he thought it was when he bought it" was $2,434.60. This exception is without merit. The court was not stating the rule for the measure of damages but reciting the testimony of the plaintiff. Besides the figures $2,434.60 seem to have been agreed to.

After an examination of the entire record we reach the conclusion that no sufficient grounds have been shown to disturb the result of the trial.

No error.