BEFORE WALKER, C.J., PRATHER AND SULLIVAN, JJ.
PRATHER, JUSTICE, FOR THE COURT.
ON PETITION FOR REHEARING
The opinion rendered in this cause on May 13, 1987, is withdrawn and the following is substituted as the opinion of the Court:
Purchasers of a used pickup truck brought this suit in the Circuit Court of Jackson County alleging a dual basis for recovery: (1) fraud and (2) breach of implied warranty of merchantability. From a judgment in favor of Jimmy and Pamela Hester, awarding $3,433.00 in actual damages, the defendant seller, Beck Enterprises, Inc. d/b/a Johnny Beck's Sales and Service (hereafter Beck) and the finance company, Coast Financial Services, perfect this appeal and assign as
(1) The circuit court erred in failing to direct a verdict for the defendant, Beck Enterprises, Inc.
(2) The verdict of the jury is contrary to the law and the great weight of the evidence.
(3) The circuit court erred in failing to direct a verdict for the defendant, Coast Financial Services, Inc.
On February 29, 1984, Jimmy and Pamela Hester purchased a 1980 Ford Ranger truck with 55,000 miles from Johnny Beck's Sales & Service in Ocean Springs, Mississippi. The Hesters financed $5,083.98 of the purchase price of $6,800.00 with Coast Financial Services, Inc., of which Johnny Beck was president.
The used truck purchased by the Hesters came with a twelve month, unlimited mileage express warranty. The limited warranty warranted mechanical repairs to the vehicle at a discount for parts and labor.
According to the Hesters, John Boyer, the salesman who sold the truck for Johnny Beck, told them the truck was in excellent shape and that he knew of it personally because it was purchased by Beck from a friend of Boyer's. In fact, however, the truck was bought by Beck at the Gulfport Auto Auction.
Several days after they purchased the truck, the Hesters had to replace the inner and outer wheel bearings. Hester notified Beck of this problem, but elected to repair the truck himself because he considered it a" minor thing. "Mr. Hester paid approximately $25.00 for the parts. Later, in May of 1984, the engine in the truck had to be replaced because the rod-bearings in the engine had previously been installed incorrectly. The replacement of the engine was performed by Johnny Beck's Sales & Service in accordance with the limited warranty. The Hesters were charged $608.93 for the material but nothing for the labor.
Beginning in June of 1984, the Hesters endured a series of mechanical failures to the truck that required repair or replacement of the drive shaft, transmission, fuel pump, water pump, master cylinder, and the brakes. The Hesters incurred approximately $150.00 expense for parts and approximately $200.00 for labor performed by Pamela Hester's
brother-in-law Rick Litsey. The prior engine problem and the contemplation of a lawsuit by Hester influenced the Hesters not to take the truck to Johnny Beck for repairs under the limited warranty.
In August, 1984, the Hesters filed their complaint in the Circuit Court of Jackson County against Beck Enterprises, Inc., d/b/a Johnny Beck's Sales & Service and Coastal Financial Services, Inc. The Hesters demanded relief of $5,083.98 from Beck Enterprises, Inc., $25,000.00 punitive damages from both defendants, rescission of the contract with both defendants, and restitution of $1,171.05 in pretrial interest from Coastal Financial Services, Inc. *fn1 In a jury trial, the Hesters were awarded actual damages of $3,433.00 and punitive damages of $750.00. The trial judge granted a judgment notwithstanding the verdict on the issue of punitive damages.
Originally in their complaint, the Hesters utilized a fraud theory of recovery. During the trial, the Hesters were allowed to orally amend the complaint to add the allegation of breach of implied warranty.
This suit is grounded in the Uniform Commercial Code as well as non-code common law principles. *fn2 The Court notes that among the general principles stated in the code is Miss. Code Ann. 75-1-103 (1972) providing that common law principles of fraud and misrepresentation supplement the code provisions as follows:
Unless displaced by the particular provisions of this code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principle and agent, estoppel, [fraud, misrepresentation,] * duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions. (Emphasis added)
Franklin v. Lovitt Equipment Co. Inc., 420 So.2d 1370 (Miss. 1982).
The elements of a claim of fraud are well established as follows: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) the speaker's interest that it ...