Feagins v. Burton

THOMPSON (IRA F.), J.

On July 30, 1924, appellant and respondent entered into a written agreement whereby respondent, who owned an equity in a certain ranch in Riverside County, California, agreed to deed his equity therein, together with certain personal property located on the ranch, to appellant, who in turn agreed to deliver to respondent a certain Willys-Knight automobile and also to deliver to respondent an agreement of credit, allowing Mm a credit of $500 on any used car respondent might desire to choose from appellant’s stock of used cars within six months from the date - of the contract. The evidence established the following facts: That respondent performed every act required of him to be performed under the terms of the contract, and that appellant delivered to respondent the WiEys-Knight automobile, but failed to deliver the credit memorandum above referred to. These further facts were brought out by the evidence: That during the six months’

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period respondent made several trips to appellant’s showroom and looked at the cars there on display; that on different occasions he selected two Ford automobiles from among appellant’s stock but did not purchase them because appellant informed him they had already been sold; that on another occasion, some time in January, 1925, respondent selected a Gardner automobile from appellant’s stock; that appellant told him the price of this car was $345, but that respondent would have to pay him an additional $40 to make up for a horse that appellant claimed had not been delivered to him under the terms of the contract; that respondent refused to pay the $40 and appellant refused to deliver the automobile to respondent. The evidence further showed that during the six months’ period appellant paid certain creditors of respondent sums of money amounting to $117.29, and that the parties agreed that this sum should be deducted from the $500 credit owing to respondent, which left a balance of $382.71. On January 26, 1925, respondent brought suit for the sum of $382.71, or in lieu thereof, an automobile whose market value was reasonably worth the sum of $382.71. The court rendered judgment for this sum, together with interest and costs, from which judgment appellant takes this appeal.

Appellant, contends that “In the case at bar there was no promise to pay any sum of money; there was no promise to pay any sum of money in merchandise,” and on this basis he contends the judgment for the direct payment of money was erroneous. This case presents the question: Did the contract involved here create such an indebtedness owing from appellant to respondent that upon appellant’s failure to pay in specific property, respondent was entitled to sue on a money obligation?