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01/13/95 DAVID SCOGGIN v. LISTERHILL EMPLOYEES

January 13, 1995

DAVID SCOGGIN
v.
LISTERHILL EMPLOYEES CREDIT UNION



Appeal from Colbert Circuit Court. (CV-92-71). N. Pride Tompkins, Trial Judge.

Rehearing Denied March 10, 1995. Released for Publication June 30, 1995.

Cook, Hornsby, C. J., and Almon, Houston, and Kennedy, JJ., concur.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

David Scoggin appeals a summary judgment in favor of Listerhill Employees Credit Union on his claims alleging fraud, misrepresentation, and breach of contract. His claims were based on his purchase of a used motor vehicle from the Credit Union. Specifically, Scoggin contends that when he purchased the vehicle, the odometer read 18,334 miles but that, in fact, the vehicle had 155,575 miles on it. He alleges that had he known the true mileage of the vehicle, he would not have paid for it as much as he did pay. He later traded it in on another vehicle before learning of the mileage discrepancy. We affirm.

In 1990, Scoggin bid $5000 on a used 1988 Dodge Dynasty automobile that had been repossessed by the Credit Union. In his deposition, Scoggin claimed that he spoke with a representative of the Credit Union and that that person told him that the vehicle had been burned and that, in order to get rid of the smoke smell, the Credit Union had replaced the interior of the car. Scoggin did not test drive the automobile before buying it. His deposition testimony described the incidents leading up to the purchase, in pertinent part, as follows:

"Q. So you came into the credit union and you spoke with this gentleman. I believe you described him as being in his 50's. And he took you out and--into the lot somewhere and showed you all the cars that they had out there that were for sale.

"....

"Q. And so he walked on out to where the car was, okay. Can you tell me what you asked him, if anything, about the car?

"A. I asked him about what kind of shape the car was in. He said it was in good shape. It had been sitting on the lot for a year because they had so much money tied up in it and no one would give [that much money for] it.

"....

"Q. And he told you that car was in good shape. Are those your words or is--

"A. He told me the car was in good shape.

"Q. That's what you remember him saying?

(Deponent nodded affirmatively.)

"Q. Do you remember anything else he told you about the car?

"A. He told me that the car had--the people that they had [repossessed] it from tried to burn it. And there was a hole in the seat about--half a dollar. And he said it smoked it up real bad, because they had shut the door and it was airtight and they throwed undoubtedly--a cigarette is what he said.

"Q. So he told you the car had been burned and you--

"A. No. He said it was a hole about the size of a half dollar in the seat, and it had smoked it up...."

C. R. 44-45. He further described the ...


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