Harris v. Whisler

GRIFFIN, J. Plaintiff, cross-defendant, respondent and appellant A. C. Harris (hereinafter referred to as plaintiff) brought this action against Glenn M. Whisler and wife, defendants, cross-complainants, respondents and appellants (hereinafter referred to as defendants) for rescission, conversion and accounting, involving an uncompleted agreement of sale of the Bakersfield Kaiser-Fraser Motor Company agency by defendants to plaintiff dated December 27, 1951. By it defendants agreed to sell the Kaiser-Fraser Motor Sales Corporation agency owned by them for $6,000 plus inventory of parts and accessories determined to be of the value of $3,069.02. Plaintiff delivered to defendants his note for $9,069.02 and a chattel mortgage on plaintiff’s fixtures, parts and accessories in a like business conducted by him in Delano. (Apparently there was a previous mortgage of $5,000 given by plaintiff on this property to one Logrecco.) An itemized bill of sale of defendants’ property was delivered to plaintiff and a chattel mortgage covered these items as well as certain other property consisting of parts, tires, etc. owned by plaintiff which had an estimated value of $10,000. Plaintiff also took with him to Bakersfield certain used cars valued at $7,400. They were not subject to the chattel mortgage.

The agreement provides, as a condition precedent that the sale should not be effective unless the Kaiser-Fraser Sales Corporation granted plaintiff a franchise. Plaintiff immediately went into possession of the Bakersfield business, moved his stock of used cars, parts, accessories, office and shop equipment, etc. there and immediately applied for a franchise. It was denied by the Kaiser-Fraser Sales Corporation on March 14, 1952. On March 17th defendants ousted plaintiff from the premises, took over and retained possession of all of the assets, including the used cars and equipment brought from Delano. Defendants claim a right to this property [386]under some form of written agreement alleged in their answer dated March 17, 1952, whereby plaintiff transferred to defendants and Logrecco title to and possession of all assets located in Bakersfield at the prescribed address of the defendants. It is plaintiff’s claim that his signature to this instrument was obtained from him without consideration and by means of threats and coercion, by threatening plaintiff that if he did not sign it they would have to send him to prison for theft, i.e., executing a mortgage on property already subject to a prior mortgage. The court so found. On April 9, 1952, plaintiff gave written notice of rescission of this so-called written agreement and demanded return of all of his property.