Commercial Discount Co. v. Howard

GATES, J.,

pro tem.

This action was tried upon an agreed statement of facts. The plaintiff and respondent is engaged in the business of handling automobile contracts— commercial paper. Appellants, who are dealers in automobiles, entered into five conditional sales contracts with various customers. For a valuable consideration they sold and transferred these contracts and the title thereof to the cars to respondent corporation. These transfers were evidenced by an assignment and agreement, to both of which we shall presently allude. The purchasers failed to make the payments called for by the contracts and respondent repossessed the cars and sold them. The amounts alleged to be the balance due were the amounts still unpaid by the purchasers at the time of repossession. The several deficiencies alleged to be due were unpaid by appellants, respondent having demanded payment thereof.

The essential part of the contract is as follows:

“

... In the event the seller elects to take possession of such personal property, all of the rights of the purchaser under this contract shall immediately terminate and all payments thereto

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fore made hereunder shall belong absolutely to the seller; provided, however, that such termination shall not release the purchaser from any payments due and unpaid at the time of such termination, and the purchaser hereby agrees to pay to the seller any and all sums which may be so due and unpaid to said seller at the time thereof.”

The salient parts of the assignment are as follows: “For value received, we hereby sell, assign, transfer and set over to Commercial Discount Company (hereinafter called the assignee), all of our right, title and interest in and to all moneys due and to become due and payable thereunder, and we hereby sell, assign, transfer and set over to the assignee all of our right, title and interest in and to the property in said contract described . . . and agree that should the assignee take possession of said property, for failure of the purchaser to perform any of the conditions of said contract, to at once pay to the assignee the balance owing by the purchaser under the terms of said contract, upon the conveyance of said property to us, or we. agree ■that the assignee may sell said property without notice of any kind, for such price as it can secure for the same, and in the event that said property does not sell for enough to pay the balance owing by the purchaser under the terms of said contract, together with the expenses of sale, upon demand, to pay any deficiency; we further agree that as to the assignee our rights and privileges shall not be those of a surety, guarantor, or indemnifier, but that our obligations to the assignee are absolute and unconditional and shall be enforcible even though the assignee’s right to enforce the contract, or any provisions.thereof, be suspended or impaired by any statute or otherwise.”