Summary
In Rodgers v. Studebaker Sales Co., 102 Pa. Super. 402, at page 406, 157 A. 6, at page 7, Judge KELLER, now President Judge, speaking for this court, said: "An expert in the used car field may be competent to give evidence as to the value of a car in a hypothetical condition, even though he never saw the car itself."
Summary of this case from Drake v. EmhoffOpinion
April 28, 1931.
July 8, 1931.
Conversion — Automobile — Wrongful sale — Suit in assumpsit — Waiver of tort — Measure of damages.
In an action of assumpsit to recover damages for the wrongful sale by the defendant of the plaintiffs' automobile, there was evidence that the plaintiffs purchased the car from the defendant under a conditional sales contract. The defendant assigned its rights under the contract to an acceptance corporation and the latter collected from the plaintiffs the installments of the purchase price. An agent of the defendant took the car away, for the sole purpose of securing an adjustment on the price, preliminary to a proposed trade-in for a new automobile. Without the plaintiffs' knowledge or consent and without completing the contemplated trade-in, the defendant sold the plaintiffs' car and refused to pay over or account for its value. The defendant alleged that at the time of the sale of the plaintiffs' car there was an unpaid balance due under the conditional sales contract.
Held: (1) That the assignee of the conditional sales contract succeeded to the defendant's rights as seller under the contract and the unpaid balance of the purchase price was owing to it and not the defendant; (2) that the defendant had no legal right or authority to hold the car or attempt to retain it for any purpose other than that for which it was received and (3) that a verdict for the plaintiffs for the market value of the car will be sustained.
Where plaintiffs seeking to recover damages for the wrongful sale of an automobile waive the tort and sue in assumpsit, the measure of damages is the price the defendant received for the car wrongly sold rather than its market value since the suit in assumpsit is a tacit ratification of the sale. The verdict will be sustained, however, where the case was tried by both sides on the theory that the market value of the car was the measure of damages and where the wrongdoer refused to inform the owners of the sale price, and the amount received by the defendant was in excess of the verdict.
Appeal No. 176, April T., 1931, by defendant from judgment of C.P., Allegheny County, October T., 1928, No. 1778, in the case of Leslie B. Rodgers and Sam Rodgers v. Studebaker Sales Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and DREW, JJ. Affirmed.
Assumpsit to recover damages for wrongful sale of an automobile. Before GARDNER, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiffs in the sum of $586, and judgment entered thereon. Defendant appealed.
Error assigned, among others, was the refusal of defendant's motion for judgment non obstante veredicto.
William A. Walker, and with him Wright and Rundle, for appellant.
S.H. Huselton, for appellees.
Argued April 28, 1931.
The evidence justified a finding by the jury that the defendant's agent had taken away the plaintiffs' automobile for the sole purpose of securing an adjustment on the price, preliminary to a proposed trade-in for a new President eight — it having been appraised in connection with the proposed "trade-in" as a 1926 model instead of a 1927 model, which it had been represented to be when bought by plaintiffs; that without the plaintiffs' knowledge or consent, and in the absence of the completion of said trade-in or exchange, the defendant had sold the plaintiffs' car and refused to pay over or account for its value.
Three legal questions are raised by the appeal.
(1) We have no doubt of the plaintiffs' right of action against the defendant under the facts above stated. The record is not printed in full, but from the part printed, in connection with the pleadings and the charge of the court, it is clear that the automobile in suit was originally sold by the defendant to the plaintiffs under a conditional sales contract in writing; that this contract was assigned by the defendant to Industrial Acceptance Corporation, which financed the transaction and which thereby succeeded to the defendant's rights as seller under the conditional sales contract; that the unpaid balance due by plaintiffs on the purchase of the car was thereafter owing to Industrial Acceptance Corporation and not to the defendant. Hence when plaintiffs delivered the car to defendant's agent for the sole purpose of securing an adjustment on the price, they were not in debt or default to the defendant in any amount, and the latter had no legal right or authority to hold it or attempt to retain it for any purpose other than that for which it was received, and if that was not consummated it was bound to return it. Any alleged balance due by plaintiffs to Industrial Acceptance Corporation gave the defendant no right to hold the automobile for the latter's account and certainly none to sell it. The record before us is barren of any evidence that the assignee of the conditional sales contract, to whom plaintiffs were paying the installments of purchase money, ever exercised its right, if any, to declare the buyers — these plaintiffs — in default and take possession of the car under the conditions of the contract.
(2) There is no doubt that the plaintiffs could waive the tort and sue in assumpsit, as was done here: Rees v. Western Exposition Society, 44 Pa. Super. 381. Where this is done, it seems that the measure of recovery, in strict compliance with the decisions, is the price the defendant received for the article thus wrongly sold by it rather than its market value, since the suit in assumpsit is a tacit ratification of the sale: Lee v. Gibbons, 14 S. R. 105, 112; Mull v. Penna. R.R. Co., 38 Pa. Super. 416, 420; Wagner v. Peterson, 83 Pa. 238, 242; Rees v. Western Exposition Society, supra; but see: Opie v. Serrill, 6 W. S. 264; Paul v. Grimm, 165 Pa. 139, 149; but three things prevent our reversing the judgment on this account: (a) Defendant refused to tell plaintiffs what it received from the sale of the car; (b) the case was tried in the court below, on both sides, on the theory that the measure of damages, if plaintiffs were entitled to recover, was the market value of the car at the time of sale — the defendant's seventh point specifically so affirms. Its present claim as to the measure of damages being incorrect seems to have been an afterthought following verdict; (c) the verdict was for less than the selling price of the car. Plaintiffs were not charged with defendant's unauthorized application of the proceeds; no authority was shown for any payments made by defendant, attempting to act on plaintiffs' behalf, out of the proceeds of sale. Implied ratification of the sale did not carry with it ratification of the defendant's disposition of the proceeds.
(3) We think the competency of Quinn, who testified for plaintiffs on the value of the car, was sufficiently established. An expert in the used car field may be competent to give evidence as to the value of a car in a hypothetical condition, even though he never saw the car itself. But in view of what we said above in 2 (c), it is not very material.
There were disputed questions of fact which were fairly submitted to the jury. The court below did not think their finding was so contrary to the weight of the evidence as to require a new trial, and we find no abuse of discretion in its action refusing to grant one.
The assignments of error are overruled and the judgment is affirmed.