On Petition foe Reheaeing
Bierly, J.— Appellant, in its Petition for Rehearing, alleges that this court erred in summarizing the facts, to-wit:
“Bernard Kneer and Mr. Krisher informed appellees that although nothing was wrong with the unit except a faulty compressor, it would be necessary to install a new unit as required by ‘company policy’ of the General Electric Company.”
Appellant contends that the above statement is not based upon the record. Upon a re-examination of this case, and particularly the transcript, we have found many passages of testimony which supports our summary; particularly, on the direct examination of William Dorr, wherein the following question and answer is quoted from the transcript:
“Q. Did Mr. Knear or Mr. Krisher ever explain to you why that compressor couldn’t be fixed instead of buying the whole new unit?
“A. Yes, they said it was all assembled at the factory as a complete unit and was not suitable for field replacement. The compressor could not be replaced in the field.”
Also, on the direct examination of Bernard Kneer for the defendant, the following questions and answers were given:
“Q 16 I want you to get to the conversation between Mr. Krisher, yourself and Mr. Dorr.
“A We told Mr. Dorr if the machine was out of warranty and the information we had had was that he was not the original purchaser of the equipment it stated in our warranty, it was General Electric Company policy that he would have to buy a new unit and we give him an estimate on the price and I think it was around Thirteen-hundred dollars.
*456“Q 17 Had you ever installed or serviced that type of equipment?
“A Yes.
“Q 18 Are you familiar with the company policy?
“A Yes.
“Q 20 What was the company policy? That is with respect to replacing?
“A The company policy was to follow the warranty as printed as we had in evidence here; that we warrant the purchaser of each new—
“Q 21 What was company policy with respect to replacing the unit, if defective ?
“A If defective and in warranty it was replaced.
“Q 22 If it was out of warranty what was the policy?
“A At that date, in 1961, we replaced the whole unit. We call it re/igeration cycle.
“Q 23 What units compose the whole unit?
“A The cycle which is replaced is the compressor, the evaporator coil, the condensor coil and part of the wiring circuit.
“Q 23 In other words, if something went wrong with the condensor you replaced all of that?
Yes at that date.
“Q 24 Was there any reason for that?
“A The reason was that in a factory assembled unit is more ef/ecient than a field unit.”
We are of the opinion that these passages justify our summary of the facts.
Appellant’s second contention in its petition for rehearing is based upon our consideration of Instruction No. 6. Instruction No. 6, was the plaintiffs’ instruction which was given, over objections by appellant, to the jury. This instruction and appellant’s objections thereto are set out below:
INSTRUCTION NO. 6
“If you should find from a fair preponderance of the evidence that it was not necessary to install a new Weathertron *457unit at the time the defendant’s agents represented to the plaintiff William B. Dorr, that a new unit was required, when in fact it was only necessary to replace the compressor on said Weathertron, and if you should further find that the defendant knew or should have known this, then this would be a misrepresentation and fraud on the part of the defendant and the plaintiffs would be entitled to recovery on Paragraph II of their complaint for the damages they sustained, if any, as a result of said misrepresentation and fraud on the part of said defendant, General Electric Company.”
The appellants’ objection to the giving of this instruction is as follows :
“In open Court and out of the presence of the Jury, the Defendant objects to the Court giving the Plaintiffs’ Instruction No. 6 for the reason that this Instruction informs the Jury that if the defendant knew or should have known that it was not necessary to replace the entire unit, but only to replace the compressor, that this would then be a misrepresentation and fraud on the part of the defendant.
“This Instruction is erroneous in that in and to establish fraud and misrepresentation, it is necessary the defendant have guilty knowledge of the falsity of the statements and that it makes it for the purpose of deceiving Plaintiffs and that they are made with the expectation and hope that the Plaintiffs will act upon said misrepresentations.”
In order to avoid any misinterpretation and misunderstanding of the law as it is applied to this case, and cases of a similar nature which will arise in the future, it is the court’s obligation to clarify our original opinion in light of appellant’s Petition for Rehearing.
The appellant contends that Instruction No. 6, set out above, is erroneous and in direct conflict with appellant’s Instruction No. 10, which reads as follows:
“Fraud is not presumed, and to warrant a recovery for fraud or deceit it must be averred and proved. To make a complaint good for general damages resulting from a fraudulent representation of a given fact, it must, in substance, be averred and proven (1) that defendant made a material *458representation as to an existing fact; (2) that it was false; (3) that he made it, knowing it to be false, or made it recklessly, without knowledge of its truth and as a positive assertion of a fact; (4) that it was made to induce plaintiff to act on it; (5) that plaintiff relied on it and acted thereon; (6) that by so doing he suffered an injury for which a recovery is sought. Unless the plaintiff has established by a preponderance of the evidence, all of the above conditions, he cannot recover on Paragraph II of their complaint and your verdict must be for the defendant on the Plaintiff’s Second Paragraph of Complaint.”
As a result of this alleged conflict, appellant charges that the jury was misled and confused as to the proper law in the case to follow.
We are of the opinion that Instruction No. 6 is not an erroneous instruction, and thus does not conflict with Instruction No. 10.
In the case of Clarke Auto Co. v. Reynolds (1949) 119 Ind. App. 586, 88 N. E. 2d 775, we find the statements of law supporting our position, as well as citations supporting those statements. Beginning on Page 592, of the above cited case, we quote with approval the following:
“In a case involving the sale of a stallion which had bone spavin, this court said, in Martin v. Shoub (1916) 62 Ind. App. 586, 113 N. E. 386:
Tf appellant made statements as to the horse’s condition which he knew or should have known were false, and thus induced appellee to purchase him, relying on such statements, the effect of such fraud can not be overcome merely by a contract expressly omitting warranties. Because the fraud was so successful as to induce the buyer to take a contract without a warranty is all the more reason that there should be liability on the fraud.’
“The fact that the officer or agent of appellant who made the representations did not know of their falsity, does not bar appellee’s recovery. As was said by our Supreme Court in Kirkpatrick v. Reeves et al. (1889) 121 Ind. 280, 22 N. E. 139:
‘An unqualified statement that a fact exists, made for the purpose of inducing another to act upon it, implies that *459the person who makes it knows it to exist, and speaks from his own knowledge. If the fact does not exist, and the defendant states of his own knowledge that it does, and induces another to act upon his statement, the law will impute to him a fraudulent purpose.’
“See also: Williams v. Hume (1925) 83 Ind. App. 608, 149 N. E. 355; Wheatcraft v. Myers (1914) 57 Ind. App. 371, 107 N. E. 81; Romine v. Thayer (1920), 74 Ind. App. 536, 128 N. E. 456; 7 Blashfield, Cyc. of Automobile Law and Practice, § 4232.”
In light of the foregoing authority, we find no error in regard to appellant’s contention that instruction No. 6 was erroneous thereby requiring a reversal.
We are of the opinion that the remainder of appellant’s Petition for Rehearing presents no questions which were not covered in our original opinion.
For the foregoing reasons we are of the opinion that the Petition for Rehearing should be denied.
Petition for Rehearing Denied.
Note. — Reported in 218 N. E. 2d 158. Rehearing denied reported in 219 N. E. 2d 206.