Goodman v. Meyers

WOOD (W. J.), J.

In this action plaintiff sought to recover a judgment for money due from defendant as the purchaser of various contracts for the conditional sales of automobiles. The court found in plaintiff’s favor on three causes of action, an open book account, assumpsit for goods sold and delivered and for an accounting. Defendant filed a cross-complaint seeking the recovery of money alleged to be owing from plaintiff to defendant. The trial court found that defendant was indebted to plaintiff in the amount of $31,-149.55 and that plaintiff was indebted to defendant in the sum of $15,603.72. Judgment was accordingly entered in plaintiff’s favor for the sum of $15,545.83, from which judgment defendant has appealed.

[358]

Conceding that, in general, the findings of fact are supported by the “uncorroborated” testimony of plaintiff, defendant directs our attention to certain contradictions and inconsistencies in the testimony and seeks to have this court declare that plaintiff’s testimony is so inherently improbable that it is insufficient to sustain the findings.

From plaintiff’s testimony it appears that for many years prior to the commencement of this action plaintiff had been engaged in the used car business and defendant had been in the automobile financing business. Since 1930 defendant has purchased from plaintiff, at a discount, many conditional sales contracts on automobiles sold by plaintiff. At the commencement of their business relationship it was agreed that defendant would purchase contracts from plaintiff at a discount and would pay the purchase price in cash; however, in those instances where the contract price exceeded the value of the car, defendant agreed to pay cash to plaintiff in an amount equal to the value of the car and to issue plaintiff a due bill for the excess which was to become payable only when the conditional vendee had paid the contract price in full. It was further agreed that when the contract price exceeded the value of the car plaintiff would transfer title to the contract by an assignment in writing in the nature of a written guarantee. In all other cases, title to the contracts was to be transferred merely by delivery. Most of the conditional sales contracts purchased by defendant were transferred merely by delivery but a few were transferrd by written assignment. Despite the agreement to pay cash for the contracts it was defendant’s custom upon delivery of a contract to pay the major portion of the purchase price in cash and within two or three days thereafter to deliver to plaintiff a memorandum of the transaction (referred to by the parties and hereinafter as a due bill) which usually indicated that an additional sum was due plaintiff. The due bills contained entries showing the balance of the contract price, the amount of cash which defendant had paid plaintiff and the amount of his discount. Where the cash amount paid plaintiff plus defendant’s discount was less than the balance of the contract price, the difference was reflected on the due bill as an amount owing to plaintiff. Some of the due bills were issued in connection with the resale by plaintiff of automobiles which had been repossessed by defendant, or by plaintiff on defendant’s be