Verna Jackson v. Charlie's Chevrolet

Plaintiff was awarded actual and punitive damages by a jury in a case submitted on a theory of misrepresentation in violation of the Unlawful Merchandising Act, § 407.010 et seq., RSMo 1978. Defendant first contends on appeal that plaintiff failed to make a submissible case under the Act in that she failed to prove a purchase pursuant to § 407.025, that she failed to prove a misrepresentation of an existing fact and that she failed to prove actual damages. We reverse. In determining whether a submissible case is made, we consider the facts in a light most favorable to plaintiff. Fain v. G.T.E. Sylvania, 652 S.W.2d 163, 164 (Mo.App. 1983). On March 5, 1980, plaintiff discussed the purchase of a used 1978 Pontiac automobile with one of defendant's salesmen. A price of $5,490 was agreed upon including a trade-in allowance for plaintiff's 1972 Chevrolet. The trade-in was to be the down payment and the balance was to be financed. Plaintiff told defendant's salesman she could get financing from a credit union, but the money would not be available until the third week of March or the first week of April. The salesman promised to hold the car until her financing came through. A form contract was filled out and signed by both parties. Plaintiff paid no earnest money, but gave the salesman the unsigned title to her Chevrolet. She also filled out a credit application with which defendant attempted to obtain earlier financing for her through GMAC and a bank. This proved impossible and plaintiff was so advised on March 7. On March 12 or 13 plaintiff learned the Pontiac had been sold to someone else pursuant to a contract dated March 8, 1980. On March 21, 1980 she agreed to purchase a 1979 Pontiac Bonneville Brougham from another dealer for $6,000. That transaction was consumated on April 4, 1980 with financing obtained from plaintiff's credit union.