Magee v. W. J. Burt Motor Car Co.

CONREY, P. J.

The defendant appeals from tie judgment. The record has been prepared under the alternative method. Counsel in their briefs have complied very slackingly with the provisions of section 953c of the Code of Civil Procedure. So far as shown by those portions of the record which are set out in the printed briefs, or stated by counsel on one side and definitely admitted by counsel on the opposing side, the facts of the case are as hereinafter stated. Matters not so presented will not be discussed.

Respondent brought this action to recover damages for the conversion of a certain automobile. On July 29, 1914, appellant delivered to the respondent the said automobile under a conditional sale agreement, pursuant to which respondent paid appellant $150 and gave to appellant twenty-two promissory notes, the first of which matured one week after that day and the remaining ones at the rate of one each week thereafter until the thirtieth day of December, 1914. The notes represented weekly payments of one hundred dollars, except

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the last payment, which was to be $80. The first of said notes was as follows:

“$100.00. Los Angeles, Cal., July 29, 1914.

“One week after date, without grace, for value received, I promise to pay to the order of W. J. Burt Motor Car Company one hundred dollars, payable in gold coin of the United States of America, with interest thereon in like' gold coin, from date until paid, at the rate of 7% per cent per annum. And in case a suit or action is instituted to collect the money above mentioned, or any portion thereof, I promise to pay ten per cent on the sum first aforesaid, additional to said amount, as attorney’s fees, in such suit or action. The above note is given upon and for the consideration that the said W. J. Burt Motor Car Co. have agreed and promised that upon the payment of said note and all other notes outstanding of even date herewith, principal and interest, at maturity

(time being the essence of this contract),

they will sell and transfer to the undersigned, at the price of said principal and interest, the one white, six cylinder, Auburn touring car, factory number 11539, fully equipped, which said W. J. Burt Motor Car Company have this day entrusted to the care of the undersigned. It is admitted and agreed that said property so entrusted is the property of said W. J. Burt Motor Car Co., and the legal title thereof is in the said W. J. Burt Motor Car Co., and shall remain in them until they shall make the aforesaid sale and transfer after the principal and interest aforesaid shall be paid.