Opinion
19831
May 23, 1974.
Messrs. McKay, Sherrill, Walker, Townsend Wilkins, of Columbia, for Appellant, cite: As to the Trial Judge's erring in holding the Respondent did not represent its product as a "40,000 mile guaranteed tire" with knowledge of the falsity of such representation or a reckless disregard of the truth or falsity of such representation where Respondent's store manager testified the product was not authorized or permitted to be so represented: 251 S.C. 586, 164 S.E.2d 763; 225 S.C. 563, 83 S.E.2d 204; 236 S.C. 144, 113 S.E.2d 730; 240 S.C. 26, 124 S.E.2d 585; 244 S.C. 493, 137 S.E.2d 578. As to the Trial Judge's erring in holding the 40,000 mile representation was a warranty only as to the tread life of 40,000 mile tires: 15 S.C.L.R. 77; 227 S.C. 289, 875 S.E.2d 87; 237 S.C. 121, 115 S.E.2d 799; 240 S.C. 26, 124 S.E.2d 585. As to genuine issues of fact which should be considered at a trial on the merits: 49 C.J. S Judgment, Sec. 220 at p. 388. Messrs. Richardson and Plowden, of Columbia, for Respondent, cite: As to the granting of summary judgment for the defendant in the fraud causes of action being proper, based upon the evidence presented to the Court: 257 S.C. 209, 184 S.E.2d 700; 254 S.C. 471, 176 S.E.2d 174; 228 S.C. 418, 90 S.E.2d 482; 239 S.C. 109, 121 S.E.2d 427; 236 S.C. 506, 183 S.E.2d 335.
May 23, 1974.
Plaintiff appeals from summary judgment for defendant in an action for fraud and deceit in the sale of automobile tires. Judgment was awarded on theory that deposition of plaintiff and of one of defendant's employees showed that there was no fraud and that plaintiff had not suffered any damage. We disagree. Plaintiff deposed that the tires were advertised by defendant's local store as guaranteed for 40,000 mile radials, and that they were so represented to him by the salesman with whom he dealt. This, they were not. In fact, the defendant did not begin to market guaranteed 40,000 mile radials until some eight months later. These tires carried only a warranty against defects and road hazards which at the time of sale was applicable to all grades of Goodrich tires. Whether the misrepresentation was fraudulently made is for determination by a trial jury.
Obviously the tires were of less value than they would have been if guaranteed by defendant for 40,000 miles, and, under the applicable benefit of the bargain rule, the difference in value is the measure of plaintiff's damages. Aaron v. Hampton Motors, Inc., 240 S.C. 26, 124 S.E.2d 585 (1962).
Reversed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur.