Marshall v. Bernheim

NOURSE, J.

Defendant Bernheim appeals from a judgment rendered against him and defendant Taylor in the sum of $2,833.19. Defendant Taylor failed to appear in the action and judgment went against him by default. Defendant Bernheim concedes that the sum of $472.30 was due from him to plaintiffs and on the trial offered to have judgment entered against him for that amount.

The complaint is in two counts. The first is for the recovery of money paid under a written agreement for the purchase of an automobile upon the ground that the vendors

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therein did not have title and the consideration for which the money had been paid had wholly failed. The second is for money had and received. The automobile which was the subject of the contract was stolen from its lawful owner in Chicago on May 29, 1920, and taken to San Francisco, where it was sold to defendant Taylor, a jewelry salesman. Thereafter, and on July 10th, plaintiffs purchased the automobile under a written lease or conditional sale contract with Taylor and it was delivered to them. The following October it was taken from them in a replevin action brought by the owner against the plaintiffs and defendants here, and in May, 1921, plaintiffs instituted this action for recovery of the money paid on account of its purchase. The complaint alleges that on the tenth day of July, 1920, “the defendant Verne Taylor, acting for himself and as the agent for the defendant J. H. Bernheim, entered into a written agreement with plaintiffs, wherein and whereby defendants agreed to sell plaintiffs said automobile” for $4,250, $2,250 to be paid upon the execution of the agreement and the remainder in ten monthly installments of $200 each; plaintiffs to have the use and possession of the automobile, but title to remain in seller until fully paid for. Bernheim’s answer denies that he was a party to the agreement alleged in the complaint, or that defendant Verne Taylor, as agent for him, or in any other capacity on his behalf, entered into an agreement with plaintiffs, but admits that defendant Taylor and plaintiffs entered into such an agreement. He also, by way of separate defense, alleges the payment by plaintiffs to Taylor at the time of the execution of the agreement of the sum therein provided for as a first payment; that the contract and automobile were thereafter on said day assigned by Taylor to him; and that on the twelfth day of August and the tenth day of September following plaintiffs made payments to him on account of the contract. These two latter payments are the amounts for which he admits liability. The trial court found, in accordance with the allegations of the complaint, that “defendant Verne Taylor acting for himself and acting for and on behalf and as agent of the defendant J. H. Bernheim” entered into the said agreement with plaintiffs, that defendant Bernheim delivered the automobile to plaintiffs, and that all the payments were made to him. The contract was introduced in evidence by plain