Sprague

In this action founded upon fraud, plaintiff, Martha Elisa Sprague, appeals from a judgment by the court vacating a judgment entered upon a jury verdict and entering a different judgment pursuant to Code of Civil Procedure section 663, subdivision 2.

The critical question relates to the proper measure of damages, which in turn is dependent upon a determination of whether the action is one falling under the provisions of Civil Code section 3343 (fraud in purchase, sale or exchange of property; additional damages) or is a tort action for deceit in which the governing damage statutes are Civil Code section 1709 (deceit; damages) and Civil Code section 3333 (torts in general). The trial court held that Civil Code section 3343 governed.

The complaint alleges and the evidence at trial showed that on August 11, 1971, plaintiff entered into a contract to purchase a new 1971 Mercury Comet automobile from defendant car dealer, and on August 17, 1971, the balance of the full purchase price of $2,653 was paid. Beginning August 20, 1971, through September 4, 1972, the plaintiff returned her car numerous times (apparently in the vicinity of 24 times) under the warranty for repair of…