Smith v. Semon

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor in an action brought to recover the balance claimed to be due upon a contract for the purchase of an automobile from the assignor of the plaintiff.

The chief and only meritorious defense urged by the defendant in his pleadings and upon the trial of the cause consisted in his averments and proffered proofs, that he had made a certain settlement with the seller of. the automobile and assignor of plaintiff, by the terms of which his contract had been canceled and his obligation to make further payments thereon terminated, in good faith and without notice of the prior transfer of the contract to the plaintiff.

Upon this particular issue the evidence before the trial court showed the following state of facts: On March 10, 1915, the defendant made and entered into a contract for a conditional sale to him of an automobile by one D. J. Alberger, doing business under the name and style of D. J. Alberger Auto Sales Company, by the terms of which contract the said Alberger agreed to sell said automobile to the defendant for the •sum of $775, of which the sum of two hundred dollars was to be paid on the date of said contract, and of which the balance was to be paid in stipulated monthly installments, the title of the machine to remain in the seller until these payments had been fully made. Attached to said contract was a printed form of notice, to the effect that D. J. Alberger had upon the date thereof sold, assigned, and transferred said contract together with his right, title, and interest in the automobile covered thereby; and that his sole connection with said contract thereafter would be that of an agent of the assignee thereof for the sole purpose of collecting the payments to become due thereon; and that all other dealings in relation to said contract must be had with the assignee thereof. The spaces in said form of notice which should contain the name

[642]

of the assignee of the contract were blank at the time of the execution of said contract and notice, and at the time of the written acknowledgment of the receipt of a copy of such notice by the defendant, and which was signed by him at the same time that the contract itself was executed, viz., on the tenth day of March, 1915. The evidence further showed that the plaintiff became the purchaser and assignee of said contract on or about April 7, 1915, and that the blanks in said notice had been filled in with his name, as assignee of said contract, when the same was delivered to him. There was no evidence before the court that the transfer of said contract had not been made in good faith and for value. The plaintiff did not give to the defendant any other formal notice of the transfer of the contract to him, but there was some evidence before the court to the effect that upon one occasion after the date of the transfer of the contract to the plaintiff, the defendant, coming to the place of business of Alberger, had there met and been introduced to the plaintiff by said Alberger in these words, as testified to by the plaintiff: “Mr. Semon, this is Mr. Smith. You know who he is. You hold some of his papers.” Testifying as to this meeting the plaintiff continued: “There was no special conversation except that I wished him success in the dealings we had together.” The defendant admits a casual meeting with the plaintiff at the time and place stated, but denies that there was any such conversation. Several weeks later the automobile was very seriously damaged in a collision, and was by the defendant taken or sent to the place of Alberger for repairs; whereupon Alberger and the defendant entered into an agreement by the terms of which the defendant was to pay to Alberger the sum of two hundred dollars, and relinquish the automobile, in full acquittance of the contract and of his obligations thereunder. This was done; and the defendant apparently supposed that the contract and his obligations thereunder were at an end. A few weeks thereafter the plaintiff appeared at the defendant’s place of business with the contract and demanded the balance of the payments due thereon, which the defendant refusing to make, he instituted this action to recover. From the judgment in his favor the defendant appeals.