Thomas v. Anthony

KERRIGAN, J.

This is an action brought to recover from the defendant one thousand dollars deposited with him by the plaintiff in conformity with the terms of a written agreement entered into between them.

When plaintiff’s case was concluded defendant moved for a nonsuit, which was granted, and judgment was rendered and entered thereon. The appeal is from such judgment.

The testimony introduced shows that the plaintiff entered into a contract in writing with the Western Motor Car Company, the trade name under which the defendant Anthony did business. The contract was a lengthy instrument, providing substantially that Thomas should purchase from the defendant fifty Saxon motor cars between the date of the agreement, February 20, 1914, and January 1, 1915. The cars were to be sold to him at “San Francisco list prices,” and a brokerage or discount of forty dollars on each car so sold was allowed to him off of said list price. The defendant reserved the right “to change the list and net prices of these cars at any time by giving the plaintiff at least two weeks’

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notice of the proposed change.” The latter agreed to open an establishment for the sale of the cars at Fresno, keep a demonstrator for exhibition purposes, and resell the ears to such customers as he could secure under the conditions named in the contract. He also deposited with the defendant one thousand dollars, which, in ease of cancellation of the contract before its expiration, or in the event that its terms should not be fully complied with by the plaintiff, was to be retained by the defendant as damages, or to be applied by him to the liquidation of accounts that might then be due to him under the contract. The right was reserved by defendant of “canceling the above contract upon fifteen days ’ notice and returning unused deposits.”

At the trial the plaintiff testified as follows: “After the contract was executed and I had paid this thousand dollars I had a conversation with Mr. Sells, the manager of the Western Motor Car Company. That was about March 3d. Mr. Sells told me I had better go down to Fresno and open up an office and take orders for the cars. I asked him how he wanted me to handle the cars. I said, ‘You promised me a demonstrator the first of the month.’ I informed him that under the conditions I could not handle the car on a paying basis, and I asked him if he would release me if I got another job. He said, ‘Most certainly. ’ So I went away and came back next morning, and told him I had another job and asked him for my deposit, and he said, ‘Mr. Thomas, it will have to come from the Los Angeles office, and it will be the end of the week before I can give it to you. ’ And he asked me to come back and get it then. I did come back then and several times later, and he kept putting me off. I ha,d a conversation with Mr. Sells when Mr. Cheney was present. Mr. Cheney asked him how long it would be before I got my money, and he stated the end of the week. Mr. Cheney wanted to know if it would help matters if we paid the expenses of wiring to Los Angeles, and he said, ‘No, it would not,’ and that he would have to write. He said, ‘You know we have a signed contract with Mr. Thomas and can hold him to it if we want to, but we don’t intend" to do it. Without a doubt he will have his money at the end of the week. ’ ’ ’