Bunnell v. Baker

MARKS, J. On June 1, 1927, the Mack International Truck Corporation, as seller, entered into a conditional sales contract with respondent, as purchaser, whereby the seller agreed to sell to the buyer four Mack trucks for the sum of $14,081.60, upon which a cash payment of $10,500 was [314]acknowledged. The balance of $3,581.60 was made payable in seven installments, the first six of which were in the sum of $500 each and the seventh in the sum of $581.60. The first installment became due on July 14, 1927, and the balance on the fourteenth day of each month thereafter. Deferred payments were made to bear interest at the rate of eight per cent per annum. The sales contract contained the provisions usually found in such agreements. It reserved title in the seller and gave it the right to retake possession of the' trucks in case of a default in the payments by the buyer. The contract was a renewal of former conditional sales contracts for the same trucks which, when new, sold for over $22,000. The buyer defaulted in some of his payments on this renewed contract, but his defaults were all waived by the seller, except, perhaps, that made by his failure to pay the one falling due on December 14, 1927. It is not necessary to decide here the question of whether or not the failure of respondent to make this payment, when due, was waived by the seller.

Appellant was a dealer in trailers and truck equipment. He sold respondent two trailers and some extra wheels for the trucks upon a conditional sales contract and had trouble in making his collections. About December 10, 1927, he entered into negotiations with the Mack International Truck Corporation for its conditional sales contract with respondent and on December 17, 1927, it was assigned to him. He claims to have paid the Mack International Truck Corporation $2,968.25 for the contract, but the evidence on this point is not very clear.

On the morning of December 27, 1927, the four trucks were attached by the sheriff of Riverside County, in an action filed in Riverside County, entitled Van Rowen against Baker (respondent here). The next case filed was the one at bar in which appellant sought to gain possession of the trucks. The complaint alleges that they were in the possession of respondent, but whether or not this allegation was true when the complaint was filed is not entirely clear from the record. The same attorney acted for both plaintiffs. The writ was issued in the case before us and five days thereafter the attachment was released and the trucks delivered into the possession of appellant. Respondent filed an answer and cross-complaint whereby the material