Markall v. Peterson

ADAMS, P. J. Plaintiff brought this action for the recovery of the possession of a Diesel engine and generator or for the value thereof alleged to be $2,500. Defendant answered and filed a cross-complaint, alleging fraud on the part of plaintiff and praying for damages in the sum of $11,000. After trial by the court sitting without a jury, findings in favor of plaintiff were made and judgment for the amount of his demand, plus attorney’s fees and costs, followed. The evidence which amply sustains the findings of the trial court shows that on November 28, 1939, plaintiff agreed to sell and defendant agreed to buy a Fairbanks-Morse Diesel Engine, Generator and Excitor, at an agreed price of $2,500. On that date defendant paid down $500 and received therefor a receipt which recited that the seller had received $500, that when completed balance of $2,000 was to be paid $750 in cash and $1,250 on contract of 12 months from date of delivery, “Engine and Generator to be working order upon acceptance by M. R. Peterson.” On December 16, 1939, defendant paid plaintiff the additional sum of $750 and on said date the parties executed a formal written conditional sale contract which provided that the balance of the purchase price ($1,250) should be paid in twelve equal monthly installments, that the equipment therein described was “used,” that it was to be installed at the Giant King Mine in Nevada County. It also provided:

“The undersigned hereby acknowledges and accepts delivery at... the property listed in the within contract pursuant to its terms.”

‘1 The purchaser acknowledges that said property covered by this contract is in good order and condition when delivered and accepts the same without warranty of mechanical or other condition. ’ ’

“It is expressly agreed that any claim for defects or defective parts shall be no defense for non-payment of any sums due under this contract, but that all such sums shall become due and payable in accordance with this agreement and shall be immediately paid when due.”

“It is understood that the seller or his assignee shall not be bound by any agreement or representation not contained in this agreement, which purchaser hereby admits he has read and understands.”

Said equipment was delivered at said mine on December 16th, at which time it had not been tested, but delivery was [251]made at the instance of defendant and against the advice of plaintiff. Upon its installation it was discovered that it was not in working order and plaintiff thereupon arranged to have same repaired, and for the purposes of such repair defendant delivered said equipment at the Fairbanks-Morse plant in San Francisco on January 15, 1940. There extensive repairs were made and the machine placed in good working condition at a total cost of $1,182.02, which sum was paid by plaintiff. On February 12th defendant accepted said equipment at San Francisco and returned the same to the mine, but he made no effort to use it and he did not pay any of the installments provided to be paid. The contract provided that title to the property should remain in the seller until all payments were made, and that should purchaser fail to make any of said payments the seller might take immediate possession of the property and declare the purchaser in default, in which event all of the rights and equities of the purchaser in and to said property should immediately cease. About March 9, 1940, plaintiff wrote defendant demanding that he pay the balance of the purchase price for the equipment; and shortly thereafter he went to the mine where he again demanded payment or that he be permitted to take the property, but defendant failed and refused to do either. On May 16th, while said equipment was still in the possession of defendant, same was destroyed by fire. The court found that “the reasonable market value of the said equipment at the time of said sale, and prior to its destruction by fire, was $2500.00.”