State Finance Co. v. Isaacson

PLUMMER, J.

On the twenty-fifth day of July, 1925, one Ed. L. Wissler, a dealer in new and second-hand automobiles, at Marysville, California, entered into a contract of conditional sale with, one Emanuel Kanupes, for a certain automobile known and called a “Jewett Businessman’s Coupe.” This contract set forth the purchase price of the automobile, the payment thereon of the sum of $440 upon the signing of the contract, and the balance thereof to be paid in monthly installments ending on the first day of February, 1927. The contract specifies' that the purchaser agreed to make such payments according to the terms of the contract; that in the event of a failure to malte sueh payments, the seller might repossess himself of said automobile and sell the same, and apply the proceeds thereof upon the contract, or might declare all of the unpaid installments immediately due upon the contract and bring suit therefor. The title to the property was reserved to the seller and was to remain in him until the full completion of the contract. Immediately upon the execution of this contract the said Wissler sold and transferred all of his right, title,

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and interest in and to the property, and also to the conditional sales agreement, to the plaintiff in this action, and further guaranteed that the purchaser named in the conditional contract, would comply with all the requirements thereof. The buyer of the automobile under the conditional agreement made one payment to the plaintiff herein and then defaulted. After the default of the buyer the plaintiff herein located the automobile in question in Fresno, took possession thereof, and placed the same in a garage in the city of Fresno. After doing this, the plaintiff, through its agent and representative, C. J. Busby, sent the garage check for the ear to the original seller, Wissler, at Marysville, with directions to him to get the car and demanded that said Wissler pay to the State Finance Company the sum of $1,276 balance due on the contract. Wissler, either by himself or through one of his employees, after receiving the garage check, as herein stated, went to Fresno, received the car in question, and took it to Marysville, where it was placed upon the premises where Wissler was conducting the business hereinbefore referred to, the testimony also showing that Wissler maintained a garage in connection with his other business, the testimony being that Wissler, at Marysville, had a garage, a showroom, and a used-car lot and place out back for cars and a salesroom. The car was taken possession of by the State Finance Company and placed in a garage in Fresno, as above stated, late in November. Early in December, 1925, the agent of the plaintiff company saw the car at Wissler’s place of business, but just where it is not stated. The testimony of some other witnesses is to the effect that the car was in the salesroom maintained by Wissler, and also that it stood for some days in the doorway or entrance thereto. Early in December, 1925, the automobile in question was sold to the defendant in this action, the defendant giving in exchange or purchase therefor to Wissler a ear owned by him and the sum of $250. The ear, at the time, contained no registration certificate. The purchaser being the defendant herein, requested new plates and a certificate, and was told the matter would be looked after. Upon cross-examination the agent Busby testified that he notified Wissler that his car was in Fresno and to come down and take it up to Marysville. This witness further testified: “I supposed