Opinion
(Filed 30 September, 1942.)
APPEAL by plaintiff from Johnston, Special Judge, at March Term, 1942, of BUNCOMBE. Affirmed.
W. K. McLean for plaintiff.
Chas. G. Lee, Jr., for defendant.
This was an action to recover damages for fraud and deceit in the sale of an automobile. Plaintiff alleged that defendant sold him a used car represented as a 1935 Model when in fact the motor was a 1933 Model. Plaintiff drove the car eight or nine thousand miles during the following ten months before instituting this action. At the close of plaintiff's evidence judgment of nonsuit was entered. An examination of the record leads to the conclusion that there was a failure of proof of the scienter, one of the essential elements of actionable fraud. Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455; Hill v. Snider, 217 N.C. 437, 8 S.E.2d 202.
Judgment affirmed.