San Joaquin Finance Corp. v. Allen

FINCH, P. J.

The plaintiff brought this action to recover an automobile which the defendant held under a conditional sale contract. The answer alleges that the defendant has paid the full purchase price of the automobile; that the contract provides for the payment of $220 in addition to the purchase price “as interest thereon, and as a fee and bonus” for making a loan to the defendant; and that

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the ‘1 agreement to pay said sum of $220 . . . was and is illegal and void under the provisions of the usury law of the State of California.” The plaintiff was given judgment for the recovery of the automobile and the defendant has appealed.

There is no substantial conflict in the evidence. It appears therefrom that the defendant purchased the automobile from Robertson & Robertson under a rough memorandum agreement for $1900, payments to be made at the rate of “$50 a month for 11 months, payment to be extended for another year if wanted.” A few days after this agreement was signed Kenneth Robertson, one of the sellers, told the defendant “he would like to assign this contract to the Weaver Co., but he said the Weaver Co. would not accept the contract . . . and he would have to make a new one” and said: “If you will do this, I will stand back of you so that it won’t cost you anything to refinance it.” A conditional sale contract, in the usual form, dated March 10, 1926, was thereupon executed by the parties, providing for the payment of monthly installments for eleven months and the balance of $979.09 on March 15, 1927. Robertson & Robertson immediately assigned all their right, title and interest in the automobile and the contract to L. F. Weaver Company. The defendant paid that company all installments as they fell due except the final one of $979.09. The defendant had possession of the automobile at all times after the first contract was executed.

March 22, 1927, without any change of possession, Kenneth Robertson and the defendant executed a conditional sale contract, by the terms of which the former purported to sell to the latter the same automobile. At that time the defendant made a payment of $49.09, thereby reducing the balance due to the sum of $930. In this contract the automobile is described as “new.” The contract provided for payment of “the total purchase price of $1,840 as follows: $910 upon the signing of this contract, the receipt of which is hereby acknowledged, and the balance of $930 plus interest and service charges, as follows”: Then follows a list of eighteen monthly payments to be made, beginning with May 1, 1927, aggregating $1150. On the day the contract was executed, Robertson assigned it to the Merced Loan & Insurance