Seeley v. Cook

DORAN, J.

The respondent herein and plaintiff below, as the purchaser of an airplane which was destroyed in an accident, instituted the present action to secure the return of money paid the appellant on account of the purchase price. The record discloses the execution of a written memorandum in the following language:

“Los Angeles, California

2/28/47

“I hereby purchase Howard NC-67495 aircraft from Lu

Cook.

Purchase price ..........................$5647.50

Deposit, 2/8/1947 ....................... 650.00

' 1 $4997.50

Add. 2/28/1947 ........................ 1500.00

Balance to be paid 2/15/47...............$3497.50

Ralph B. Seeley.”

[277]

According to the appellant’s brief, “After the plane was inspected by respondent Seeley, there were eight things only to be done on the seller’s part, i.e., furnish new tires, have it painted, put a new propeller on it, a cover for the motor, a clock, provide for an additional passenger, put on a good radio.” Respondent testified that “he (Cook) said he could have the plane completed by April 8th ... so I gave him a check (post-dated) dated April 8, 1947 for $2,498.00,” which was the balance then due on the purchase price. After the giving of such check and about March 30, 1947 “he (Cook) crashed the plane out near Saugus and wrecked it.” Seeley thereafter stopped payment on the cheek, and instituted the present action. The trial court gave judgment for the plaintiff, respondent herein.

The appellant’s contention is that title to the airplane had passed to the buyer although formal delivery had not taken place; that therefore, the risk of accident was in the buyer rather than in the seller. It is also argued that appellant was “an intermediate party, not a principal,” a Mr. Jorgensen being the actual owner, and that “respondent sued the wrong party. ’ ’ In reference to the title, it may be noted that during the negotiations appellant secured a bill of sale from Jorgensen, in order, according to appellant’s explanation, “that appellant could borrow on said ostensible title the balance . . . owed to Mr. Jorgensen by the respondent . . . who was in the hospital and could not manage his own affairs.”