Opinion
Hearing Granted by Supreme Court Jan. 26, 1928.
Appeal from Superior Court, Los Angeles County; Paul Burks, Judge.
Action of claim and delivery by C. C. Redd against the Garford Motor Truck Company and another. Judgment for plaintiff, and defendants appeal. Reversed.
COUNSEL
W. Cloyd Snyder, of Santa Paula, for appellants.
I. R. Rubin and M. G. C. Harris, both of Los Angeles, for respondent.
OPINION
STEPHENS, Justice pro tem.
Plaintiff purchased a truck of Garford Motor Truck Company, Inc., on a conditional sales contract. The sales price was $5,670.15, upon which he received credit for another truck turned in at $1,550, leaving a balance of $4,120.15, payable monthly as follows: October 14, 1923, $465, with interest at 8 per cent. per annum, the balance payable at the rate of $215 with interest on the 14th of each succeeding month until the whole amount was paid. Time was of the essence of the contract, which provided that no representation other than contained in the contract would be recognized by lessee or lessor, and "that any payment made by the lessee to the lessor may at the option of the lessor be applied to any open or current account owing by the lessee to the lessor for any reason whatsoever."
Upon receipt of notice of the due date of the first installment of $465 and interest of $27.46, or total of $492.46, plaintiff gave the defendant Dean, Garford Company’s agent, a check for $300, receiving back a memorandum credit: "By Cash 10/15/23 $205.50, By credit, 10/15/23, $50.00." The credit was for securing a buyer for the old car. At this time plaintiff owed $94.50 for merchandise. The $300 check was then applied as follows: $94.50 in merchandise, leaving the credit mentioned of $205.50, credit for sale of old truck, $50; total credits, $255.50-leaving unpaid on first installment, $236.96. In due time plaintiff received notice of second installment and paid it.
On November 21, 1923, plaintiff took this truck into defendants’ place of business and left it there under an oral agreement that defendants would attempt to sell it. The next day defendants notified plaintiff that they had repossessed it under the contract. Shortly thereafter plaintiff offered to pay defendants $239.96, the unpaid balance of the first installment, but defendants refused to take it. The truck was worth $3,000 on November 22d. Judgment was given for plaintiff for the redelivery of the truck or $3,000 as the value thereof, and for $2,000 for its detention.
These facts demonstrate that on the date of repossession of the truck there was unpaid on the first installment the sum of $236.96. The mere fact that a subsequent installment had been paid does not constitute a waiver of any rights under the contract. Pacific Finance, etc., Co. v. Pierce, 48 Cal.App. 600, 191 P. 1115; Benedict v. Greer-Robbins Co., 26 Cal.App. 468, 147 P. 486. But plaintiff claims some relief from the situation because of a claimed arrangement with defendant that he should be carried on an open book account. It is impossible, however, to get anything definite on that subject from the evidence. The trial judge expressed this difficulty, and, after direct and cross examination of plaintiff, the following took place at the trial:
"The Court: What do you mean by this open account? Do you mean that of the initial payment of $1,550, paid at the outset, there was a part that was not paid? A. Yes; that was our understanding, that I could pay that unpaid balance at any time I desired, any time that I could make the payment.
"Mr. Snyder: That is objected to as a conclusion, what the understanding was.
"The Court: When you refer to the open account you mean that there was carried on the books of Mr. Dean-of the Garford Motor Truck Company-a part of your first payment? A. Yes, sir.
"Q. How much? A. The difference between $1,550 and a one-third value of the truck.
"Q. Well; what does that amount to? What was the total value of the truck? A. $5,500 and some odd dollars.
"Q. Well; it was $1,550 plus $4,120.15, was it not? A. Yes, sir.
"Q. That would be $5,670.15? A. Yes, sir; the full value of the truck, less $50 credit.
"Q. And you say the amount of the open account was one-fourth of the difference? A. One-third.
"Q. One-third of the difference between $5,620.15 and $1,550? A. Yes; less that $50-well, I see you have deducted that already.
"Q. That would be over $1,000; it would be $1,356.71, according to your explanation. A. It shows on the statements the amount of the unpaid balance of the open account, which I always went by-on the statements that I received."
There is no statement in evidence alluding to an unpaid balance of an open account. On the contrary, all of the statements in evidence refer to the contract. If anything can be made out of this, it is that the ordinary terms of sale of the truck was one-fourth of the whole sales price down, but that because plaintiff had not sufficient funds he was allowed to take the truck on $1,550 down. In some unaccountable manner plaintiff got the idea that the difference was a book account credit. Of course, the contract shows that the price of the truck less initial payment was strung out through 18 monthly payments, and the contract embraces the whole agreement.
It is obvious that the evidence does not support the finding that on the day of dispossession plaintiff was entitled to the immediate possession of the truck, or that defendants wrongfully and unlawfully withheld it from plaintiff; but, on the other hand, the evidence shows affirmatively and without contradiction that defendants’ retention of the truck was within their rights under the contract. It follows that the damages allowed in the judgment as the value of the truck and for the detention thereof from plaintiff are left without support.
Judgment reversed.
We concur: CRAIG, Acting P. J.; THOMPSON, J.