Sorensen v. Commercial Credit Co.

KNIGHT, J.

This is an action for damages, brought on a complaint setting up two causes of action. The first is for the alleged breach of an oral agreement to sell seventy-six used automobiles, and the second is for the conversion of said automobiles. A nonsuit was granted, and plaintiff appeals from the judgment of dismissal entered pursuant thereto.

The evidence shows that the automobiles in question were repossessed by defendant from the H. 0. Harrison Company (which subsequently became bankrupt) after default in payment of loans advanced thereon by defendant; and that shortly thereafter negotiations were opened by the plaintiff with defendant for the purchase thereof. Fifteen of the cars were stored in plaintiff’s used car storeroom and eleven or twelve more were stored with a radiator company. The negotiations continued for several days, and finally, on June 30, 1932, the parties agreed upon a price of $25,393.65 for the entire lot. However, at that time defendant informed plaintiff that it would be unable for a period of five days to transfer or deliver the certificates of ownership of the automobiles, all of which were then in its possession, because the

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trustee in bankruptcy was entitled within that time to pay off the loans and redeem the property. The State Finance Company, which was financing the purchase for plaintiff, thereupon refused to deliver its check for the purchase price unless there was an immediate transfer and delivery to it of said certificates. Considerable discussion followed, and eventually, on that same day, all parties being present, an arrangement was agreed upon whereunder the sale of the automobiles was made direct to the finance company, subject to a five-day option to defendant to repurchase; and in corn-summation thereof. the following instrument was drawn in plaintiff’s presence, and later, in his presence also and at his direction, was signed by the executive of the finance company: “San Francisco, Calif. June 30, 1932. The undersigned agrees that in consideration of the sale to it of certain used cars repossessed from H. 0. Harrison Company to which inventory is hereby referred agrees that in the event the Commercial Credit Company shall desire to repurchase such cars on or before the hour of eleven o ’clock -a. m. of the fifth day of July, 1932, it shall have the option to do so by the* repayment to the undersigned of the sum of $25,393.65 whereupon the undersigned agrees to reassign the legal ownership certificates and quit claim to all of said automobiles and agrees that the sale shall be nullified entirely. State Finance Company, C. J. Busby, Pres.” Upon the execution of said instrument the finance company delivered its check for the entire purchase price to defendant, and defendant transferred and delivered to the finance company the certificates of ownership. All of this was done also in plaintiff’s presence and at his request. Defendant also delivered to plaintiff an order on the radiator company for the delivery of the eleven or twelve ears there stored. Two days later, however, and on July 2, 1932, defendant exercised its option to repurchase, and in consummation thereof paid to the finance company the entire purchase price called for by the option, and received a retransfer and redelivery of the certificates of ownership. At no time did the trustee in bankruptcy offer to redeem the automobiles, and subsequently defendant disposed of them to other buyers, the total price received being somewhat above the sale price to the finance company.