Opinion
Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.
Action by E. Junior Bennett against Sarah G. Potter. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Appeal from judgment dismissed, but order denying new trial reversed.
COUNSEL
Davis, Kemp & Post, for appellant.
Edw. L. Payne, for respondent.
OPINION
JAMES, J.
Plaintiff secured a judgment in the superior court for the sum of $1,775, with interest, for alleged breach of contract committed by defendant in refusing to accept and pay for a certain automobile under an agreement for the purchase of the same. An appeal was taken from this judgment, and from an order denying a motion for a new trial. The appeal from the judgment was taken more than six months after the entry thereof and cannot be considered for any purpose. Code Civ.Proc. § 939, subd. 1; Robinson v. Eberhart, 148 Cal. 496, 83 P. 452. In reviewing the ruling of the trial court in denying defendant’s motion for a new trial, the sufficiency of the complaint cannot be considered, and neither can the findings be examined for the purpose of determining whether or not they support the judgment. Swift v. Occidental M. Co., 141 Cal. 165, 74 P. 700; Sharp v. Bowie, 142 Cal. 467, 76 P. 62; Coburn v. California Portland Cement Co., 144 Cal. 82, 77 P. 771; Jenson v. Will & Finck Co. 150 Cal. 413, 89 P. 113.
Upon the appeal from the order denying defendant’s motion for a new trial the sufficiency of the evidence to sustain the findings, and the rulings of the trial court in admitting certain testimony over the objection of defendant, are the questions presented for consideration.
On December 26, 1906, defendant signed the following writing and delivered it to plaintiff: "Dec. 26-06. In consideration of the E. Jr. Bennett Automobile Company having ordered from the Wayne Automobile Company one Model ‘F’ Wayne car, I agree to purchase said car at a total price of $3,650, as soon as ready for delivery to me, and I do hereby make a first payment of $75 on same, $425 due Jan. 1, ‘07, and balance of $3,150 being due the E. Jr. Bennett Automobile Company upon notice to me that the said car is ready for delivery. [Signed] Sarah G. Potter."
Contemporaneously with the making and delivery of the foregoing writing, there was issued to defendant by plaintiff the following receipt:
"Dec. 26-06. Have this day received from Mrs. Sarah G. Potter of Los Angeles, California, $75, to be applied as first payment on one Model ‘F’ Wayne car, the total purchase price being $3,650, the balance of $425 due Jan. 1, ‘07, and the balance of $3,150 to be due when said car is ready for delivery. E. Jr. Bennett Automobile Company, by E. Jr. Bennett.
"Remarks: Mrs. Potter’s ‘G’ car to be accepted as payment of $1,000, when ‘F’ is delivered and paid for in full. Mrs. Potter is to have the use of an automobile one afternoon a week, until delivery of her own car, after which her car is to be kept for her free as long as necessary, in return for use of same for demonstration and show purposes."
Plaintiff set forth his cause of action in three counts and at the trial elected to proceed under the third count only. The foregoing written instruments in haec verba were set forth in the third count, and in the answer made by defendant thereto there was no denial of the execution of these instruments. Defendant relied chiefly upon an alleged "countermand" of her order, it being her claim that by the execution of the written instruments set out above she only tendered to plaintiff an offer to purchase an automobile, which offer she might withdraw at any time before acceptance. The notice of "countermand" was served on plaintiff on or about the 23d day of January, 1907. The law as applied to the making of contracts does indeed permit a party making an offer to another to withdraw his offer at any time before it has been accepted by the latter. In this case, however, the contract of the defendant became complete upon the making and delivery of the writing set forth in the pleadings. Defendant’s offer to purchase an automobile was accepted by the plaintiff when he received the initial payment and issued his receipt to the defendant. The alleged notice of "countermand" served in January was ineffectual as affecting the rights of plaintiff under his contract.
The court made its findings of fact, which were to the effect that a contract according to the terms of the several written instruments executed on December 26, 1906, between the parties hereto, had been made, and that defendant had refused to accept the automobile agreed to be purchased by her, and that plaintiff resold the same after demand upon defendant to accept the automobile, and that the price obtained therefor was the sum of $1,800, which was the best price obtainable in the Los Angeles market. In the judgment, credit for the amount of $1,800, plus the $75 paid as an initial payment, was allowed against the purchase price and judgment given for the remainder thereof. No finding was made as to whether or not the model "G" car, mentioned in the receipt issued by plaintiff, which was to be taken into account and a credit allowed therefor to the defendant, was ever received or credited; no evidence was offered on that subject. On account of this omission, we think that the finding that only the sum of $1,800 received upon the resale of the automobile and the $75 paid as initial payment should be credited to defendant, is not supported by the evidence. The receipt issued to the defendant by the plaintiff having attached thereto a statement that the defendant’s model "G" car should be accepted as payment of $1,000, in our opinion, added a term to the contract of the parties not expressed in the writing signed by defendant alone. The defendant accepted the receipt with that condition stated thereon, and both the paper signed by her and the receipt were treated by the parties and by the court as expressing the terms of one and the same contract. The execution of these papers was admitted in the answer of defendant. Evidence to be considered in making up findings of fact may be that furnished either by the testimony of the witnesses or the admissions of the parties in their pleadings. On his part the plaintiff agreed that the purchase of the automobile was to be for cash in part and in part by the acceptance by him of an automobile from the defendant for which he was to allow her the sum of $1,000. There should have been some evidence to the point, and a finding also, that the automobile agreed to be received and credited on account of the purchase of the new machine was not delivered to plaintiff for that purpose, before it could properly be found that there was a cash balance due plaintiff represented by the difference between the sum of $1,800, for which the new automobile was sold, plus the $75 paid as first payment, and the total amount of the purchase price, to wit, $3,650.
In plaintiff’s third cause of action it is alleged, in effect, and the court found, that the automobile agreed to be purchased by the defendant was "delivered to defendant in accordance with the agreement of sale." If title to the property purchased had vested in defendant, then the detriment caused to the seller is determined by the provisions of section 3310, Civ.Code, to be the contract price. The findings were further to the effect that there had been a repudiation of the contract of purchase by defendant and a refusal to make use of the automobile; also, that it remained in possession of plaintiff at all times up to the date when it was resold by the plaintiff. The measure of damages would be different where title had passed to the vendee than it would be where no title had become so vested. If title to the automobile in fact had passed to defendant, no right would be left in plaintiff to resell the property, except under proceedings appropriate to enforce or satisfy the lien given him by section 3049, Civ.Code. It is not found that the automobile purchased was resold by direction or with the permission of defendant. If the amount of the contract price measured plaintiff’s damage, and we think it did under the findings of the court, then the measure applied by the court was an improper one, being that furnished by section 3311, instead of section 3310, Civ.Code. See, also, § 1502, Civ.Code. But whether or not the action of plaintiff in selling the automobile amounted to a conversion thereof seems immaterial. Defendant was not prejudiced by the introduction of testimony showing such sale, as the damages claimed were not in excess of the contract price fixed by the agreement of the parties. In the particulars first stated herein, however, we think that the evidence does not sustain the findings.
The appeal of defendant taken from the judgment entered herein is dismissed; the order of the trial court denying defendant’s motion for a new trial is reversed.
I concur: SHAW, J.
ALLEN, P.J.
I concur in the judgment of reversal. The court finds a sale and delivery by plaintiff to defendant of the motor car. Nothing is found which would indicate a reserved lien of any kind or character. The findings are such that the title passed, under section 1502, Civ.Code. The findings further demonstrate that the possession of plaintiff after delivery was that of an agent and on behalf of defendant only. No authority to sell the car is found by the court. There is nothing in the pleadings indicating any sale under authority claimed or otherwise. The contract as found by the court, all of its terms being considered, was to the effect that plaintiff sold to defendant a car for $2,650 in money, and agreed to take and receive in exchange other property of the value of $1,000. The parties seem to have proceeded to trial upon the allegations of the third cause of action and the answer thereto. There is no averment or finding with reference to any demand upon the part of the plaintiff for the delivery of the property which he agreed to receive in exchange, nor is there any allegation or finding which would justify the court in rendering a money judgment for the price and value of such property. If we consider the allegations of the first and second causes of action, they disclose that the property to be received in exchange was actually turned over and by plaintiff sold. There is, however, no finding with reference to the delivery of this property in exchange. Defendant was entitled to a credit for the agreed price, if the same was delivered and sold by plaintiff, it mattering not how he received it; for, if he converted it, under subd. 1, § 438, Code Civ.Proc., as construed by our Supreme Court in Story & Isham C. Co. v. Story, 100 Cal. 37, 34 P. 671, defendant was entitled to have the stipulated price set off against the contract. Under the complaint and answer, the findings being in plaintiff’s favor, he was entitled to a judgment for $2,575, being the cash payment less the $75 paid, upon the payment of which defendant was entitled to the motor car. We find allegations in the complaint to the effect that the car possessed no market value from the time of its sale up until shortly before the trial of the cause, and the court finds this to be true. There is nothing in the nature of the action as brought making the value material or an issuable fact, unless it is assumed that the plaintiff anticipated a conversion in the future and was laying the groundwork therefor. In addition to all of this, the findings of the court with reference to value are decidedly inconsistent. It first finds that the property possessed no market value, and then finds it to have been sold for $1,800, which was its market value, in connection with which the bill of exceptions discloses that plaintiff during the time he held the property in his possession sold other cars of his own of similar character for $3,100.
Considering the whole record, it seems unquestioned that the judgment should be reversed and the cause remanded, to the end that, under appropriate pleadings, the trial court might be enabled to render a judgment by which the rights of the parties should be finally declared.