Jackson v. Arc Investment Co.

WOOD, P. J.

In this action plaintiffs sought a declaration that an automobile conditional sale contract, and a prom

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issory note given in connection therewith, were void under the provisions of section 2982, subdivisions (a) and (c), of the Civil Code in that the plaintiffs did not make a cash down payment as stated in the contract; the “Time Price Differential” was not entered on the contract; and the contract balance was not entered thereon. Plaintiffs took possession of the automobile in February 1960 and thereafter paid five monthly installments of approximately $100 each, and then commenced this action in July 1960. They kept possession of the automobile more than two years.

The minutes show that plaintiffs did not make an opening statement at the trial, and motions of defendant First United Thrift and Loan Company and Arc Investment Company for nonsuits were granted. The motions were granted before any evidence was received. The findings and the judgment state that motions of the defendants for judgment

on the pleadings

and nonsuit were granted.

Plaintiffs’ notice of appeal states that they appeal from the judgment of nonsuit against plaintiffs and in favor of defendants First United Thrift and Arc Investment. (The appeal as to First United Thrift has heretofore been dismissed by this court.)

Appellants contend that the court erred in granting the motion for nonsuit as to Arc Investment. They argue that since the amendment of section 581c of the Code of Civil Procedure in 1961 a nonsuit is not proper in a nonjury trial. It is to be noted, however, that the judgment recites that it is also a judgment on the pleadings. The matter of judgment on the pleadings is not discussed or referred to by appellants.

It is to be noted further that the defendant Arc Investment, as holder of the promissory note, filed a cross-complaint against plaintiffs wherein it sought judgment upon the note. Defendant First United Thrift, as assignee of the contract, filed a counterclaim wherein it sought possession of the automobile. Plaintiffs (as cross-defendants) answered the cross-complaint and counterclaim and thereby presented issues which were the same as the issues presented by the complaint and the answers thereto. After the motions for nonsuit had been granted, as above related, the court received evidence upon the issues under the cross-complaint and counterclaim. Witnesses testified on behalf of the cross-complainant and counterclaimant. Plaintiff Morris Jackson testified on behalf of the plaintiffs. The contract, note, and assignment of the contract were received in evidence.