Yost v. Hillcrest Motor Co.

KINGSLEY, J.

Sometime in the fall of 1960, plaintiff Tost entered into an arrangement with Jack Weiner, (doing business as Jack Weiner Auto Sales) whereby, in consideration of the appearance by plaintiff on a television program advertising Cadillac Motor Car Division products, Weiner agreed to ‘ ‘ deliver to plaintiff through an authorized Cadillac dealer” a 1961 Cadillac for the sum of $5,418. Plaintiff accepted the offer and Weiner executed and delivered to plaintiff an automobile purchase order dated August 1, 1960. Plaintiff paid Weiner certain sums and the purchase order was endorsed “Paid in full” by Weiner. As far as can be ascertained from the record, plaintiff fully performed his part of the arrangement with Weiner.

Sometime in December 1960, delivery of a ear not having been made, Weiner tendered to plaintiff a check for all monies paid by plaintiff to Weiner, For- reasons not disclosed at the trial, this check was never cashed and was in the possession of plaintiff at the date of trial. Instead of carrying through

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this rescission, Weiner, on December 28, 1960, took plaintiff to the place of business of defendant motor company. After some discussion with defendant’s salesman, defendant delivered a 1961 Cadillac to plaintiff on receipt of (a) plaintiff’s cheek for $286 to cover certain automobile accessories (the validity and soundness of this check is not questioned) and (b) Weiner’s check, payable to defendant, for $8,348.81. The latter cheek was dishonored on presentation and defendant offered to return plaintiff’s $286 and demanded return of the automobile.

The complaint alleged Weiner had, at all times, been acting as the agent of defendant, that the monies paid by plaintiff to Weiner were paid to him as agent for defendant, and that defendant had, thus, been fully paid for the automobile. The answer denied any agency in Weiner, alleged that Weiner was the agent of plaintiff, that the sale was made on a representation which plaintiff knew or should have known was false—namely that Weiner’s check was good, and that the sale was conditional on plaintiff’s and Weiner’s checks being paid on presentation. The pretrial statement, incorporated into the pretrial order, set forth the issues as follows:

“1. Whether Jack Weiner was the agent of defendant.