Wooley v. Schilder

WARNE, J. pro tem.

*

This is an appeal from a money judgment rendered in favor of plaintiff. The case was tried by the court sitting without a jury.

In May of 1952, the plaintiff, as buyer, and the defendant, doing business as Mendocino Motor Sales, as seller, entered into an installment sales contract for the purchase of a 1950 Ford F-8 tractor, upon which there was an unpaid balance of $1,590 payable in monthly installments. Defendant assigned this contract to the Bank of America National Trust and Savings Association. Plaintiff was also the owner of a 1945 Reliance log trailer which he used in conjunction with the tractor.

In June of 1952, the plaintiff was having marital difficulties, and in an attempt to secure funds to comply with the court order for the support of his wife he left the tractor and trailer with the defendant with instructions to sell the same, deduct a commission for making the sale, satisfy an account which respondent was then owing appellant, and then to deliver the balance of the proceeds from the sale to the plaintiff.

Plaintiff failed to pay the June and July installments on the contract to the Bank of America, and in due course the bank made demand upon him for payment. Plaintiff mentioned the matter to the defendant and asked him if he, plaintiff, should make the payments, to which defendant replied, “no, it would take care of itself.” It appears that the bank exercised its right.of repossession on September 27, 1952, and transferred the tractor to the defendant in exchange for $1,577.50.

In March of 1953, defendant sold the tractor for thp sum of

[685]

$2,500, and as part payment accepted a Reo truck as a “trade-in” at an agreed value of $976. Thereafter, defendant sold the Reo and the plaintiff’s Reliance trailer for the sum of $1,695. In this deal a Diamond T truck was traded in on the purchase price at an agreed value of $376. The Diamond T truck was later disposed of and a Ford panel truck accepted as part payment at a value of $100. The Ford panel truck was “presumably” sold for $100. Repairs were made on the Ford tractor, the Reliance trailer, and the Reo truck by the defendant while the vehicles were in his possession, without the consent of the plaintiff. After the final “washout sale” defendant claimed there was nothing coming to plaintiff, but that as a result of defendant’s selling plaintiff’s truck and trailer, making repairs and suffering a loss on one of the trade-ins plaintiff owed defendant the sum of $265.76.