Gates v. Levers

ADAMS, P. J.

Plaintiff brought this action to recover from defendant money he had paid for a house trailer under a conditional sales contract, basing his action on misrepresentation and fraud, followed by rescission. Defendant demurred to the complaint, and said demurrer being overruled filed his answer denying misrepresentations. The action was tried by the court sitting without a jury, and at the conclusion of plaintiff’s evidence defendant made a motion for a nonsuit. The court suggested that it would take the motion under submission and would hear defendant’s evidence. Defendant, however, declined to offer any evidence and rested on his motion. The court thereupon made», findings in favor of plaintiff and entered a judgment against defendant, from which judgment defendant has appealed.

Appellant’s main contention for a reversal is that respondent was not- the owner of the trailer, as records of the Motor Vehicle Department showed Marcelene Fisher, plaintiff’s sister, as the registered owner, and Security Acceptance Corporation, Sacramento, as the legal owner, and he urges that this record is conclusive as against any claim by plaintiff to the house trailer, with the result that his rejected offer to restore was legally insufficient to establish rescission.

Plaintiff testified that he put the trailer in his sister’s name and signed her name to the application for registration as he wanted the trailer to be in her name; he stated that he had personally entered into the contract for purchase of the trailer on July 19, 1948, and had made a down payment and monthly payments until about August, 1949, when he suffered a stroke of paralysis and was unable thereafter to sign checks. His sister then took over and made the payments thereafter, and plaintiff transferred his residence from Sacramento and went to live with his sister in San Francsco. He also testified that of the original down payment of $1,500

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his sister put up $600 which he still owed her, and that she had made seven or eight installment payments since he became ill. However, plaintiff, who bought the trailer as- a place of residence, had lived in and had possession of it, and his sister never had possession.

Marcelene Fisher testified that she was with her brother in North Sacramento about the time that the contract was made and was in defendant’s trailer yard just prior to the making of said contract and had then looked at the trailer. She testified as to matters pertaining to the representations by the seller and as to the conditions which resulted from the alleged failure of the trailer to meet them. But she asserted no interest in the trailer and appeared to be satisfied to have her brother succeed in the action to her exclusion.