Locomobile Co. of America v. Belasco

THE COURT.

This is an appeal from a judgment in favor of the defendant. The action is one in replevin for the return of an automobile sold by the plaintiff to the defendant, the plaintiff’s right to replevin the same being based upon the theory that at the time of the commencement of the action the defendant was in default in the payment of the sum of $350 due under the terms of a lease note, or conditional sale agreement, evidencing the transaction, and which agreement provided that in the event of default the plaintiff might retake possession of the ear. Defendant contends, on the other hand, that there was only the sum of $150 due, which he also claims to have tendered to the plaintiff prior to the institution of the action.

The court found for the defendant, awarded him possession of the car, and in addition gave him, upon his cross-complaint, $425 damages consequent upon the replevin of the car.

The agreement in express terms provided that the price of the automobile was $2,650, but that the defendant should be allowed thereon the sum of $1,250, the value of a car turned in by the defendant, and should also be credited with such further sum over and above the $1,250 as might be realized by the plaintiff from a resale of the latter car. It is the claim of the defendant, however, supported by an abundance

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of evidence and sanctioned by the finding of the trial court, that the defendant signed the contract of purchase with a distinct oral agreement that he was to have a credit on account of the turned-in car of $1,450. He testified, as did others in his behalf—including the salesman who conducted the sale ■—that the defendant refused to sign the contract unless allowed a credit of at least $1,450 on account of the old car, he having purchased the latter from the plaintiff three months before, and having paid therefor $1,750. These witnesses, or some of them, also testified that the defendant signed the contract upon the representation of the salesman that the parent organization of the plaintiff (of which it was but a subsidiary) insisted that cars of the type of the one in question should be sold for not less than the schedule price of $2,650, and that cars of the model of the one turned in in part payment should be considered as of a value of no more than $1,250. There was also testimony that the manager of the plaintiff approved the oral understanding had with the defendant. It is admitted that the old car was sold by the plaintiff for $1,250, several weeks after the transaction here involved, by a salesman of the plaintiff other than the one with whom defendant dealt. The latter testified, as a witness for the plaintiff, that when he made the promise to the defendant to allow $1,450 on the old car he was positive he could effect a sale of it for that sum; that he knew persons who he was sure were willing to pay that price for such a car.