Carvell v. Weaver

KERRIGAN, J.

This is an action for damages for the conversion of a Ford automobile.

On October 25, 1915, under a conditional contract the plaintiff, W. S. Carvell, purchased from the assignors of defendant L. F. Weaver, an automobile for which Carvell agreed to pay the sum of $508.50. Of this sum $200 was paid at the date of the contract, and the balance, with interest upon its diminishing residuum, was to be paid at the rate of $35 per month. None of these monthly payments were made upon their due date, but when tendered were accepted by the vendor of the automobile. On the twenty-second day of April following, there being overdue $20 upon an installment of said purchase price falling due in March, Weaver commenced an action in claim and delivery in the .justice’s court, and under a writ of possession the automobile was delivered to Weaver. Carvell in his answer to the complaint in said action did not pray for its return, but denied the allegations of the complaint and in addition alleged that Weaver had repudiated the contract. He accordingly demanded judgment for the sum of the payments made by him, and damages for the detention of the motor-car.

The justice of the peace, proceeding doubtless upon the theory that Weaver had a right to enforce the literal terms of the contract notwithstanding that under the authorities there had been, by reason of the vendor’s acceptance of overdue payments, a waiver of the forfeiture clause of the contract until reasonable notice was given to the vendee that the terms of the contract as to time of payment would be strictly enforced, awarded plaintiff therein judgment; but the superior court, on appeal, applying this doctrine of waiver, rendered judgment in favor of Carvell for the return of the automobile upon payment

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of the balance due under the contract and costs. Thereafter Carvell tendered Weaver such balance, but Weaver, while paying the costs, refused to accept such balance, stating that he did not have possession of the car and did not know its whereabouts, and refused to deliver it.

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In rendering its judgment on appeal the superior court failed to direct that if a return of the property could not be had Weaver should pay to Carvell its value fixed at a certain amount. Hence, when it appeared that Weaver was unable to return the property and that Carvell’s interests had not been fully protected by the judgment, the latter about a year after the rendition of the judgment commenced this action against Weaver for damages for the conversion of said automobile, and obtained judgment.