Webster Thrift & Loan v. Hartford Accident & Indemnity Co.

SHINN, P. J. This is an action against the surety on a used car dealer’s bond. The court made findings and entered judgment in favor of plaintiff in the amount of $2,354.66. Defendant appeals from the judgment and has noticed an appeal from an order overruling its demurrer to the amended complaint. On December 20, 1956, Advance Motors, Inc., a used car dealer, sold a 1955 Cadillac automobile to David Duvall, one of its employes, under a contract of conditional sale. On or about the same date, the contract was assigned to plaintiff, Webster Thrift and Loan, with recourse, for $2,800, which the court found to be the reasonable value of the car at that time. The assignment provided as set forth in the footnote.1

Plaintiff did not obtain the ownership certificate to the Cadillac upon paying the $2,800 and taking an assignment of the contract from the dealer. After receiving two payments totaling $445.34 on the contract balance, plaintiff made demand upon Advance Motors for the certificate on or about May 24, 1957. At that time plaintiff discovered that the car had been resold, although the record does not disclose whether it had been resold by the dealer or by Duvall, or both.

Paragraph VII of plaintiff’s complaint reads as follows; “That pursuant to the provisions of Section 24.03 of the Municipal Code of the City of Los Angeles, defendant Hartford Accident and Indemnity Company issued a used car dealer’s bond in the sum of $10,000.00 to the City of Los Angeles, and to any person, firm or corporation suffering loss or damage as the result of the sale of a used motor vehicle by the principal Advance Motors, Inc. as a used car dealer, including failure to deliver a clear title to any person entitled thereto within twenty-one (21) days after final payment has been made.’’ In its answer thereto, defendant alleged as fol[698]lows: “Answering paragraphs VII and X, defendant admits that it issued its bond pursuant to the provisions of Municipal Code § 24.03 in the sum of $10,000.00 and that plaintiff made demand upon this defendant for payment and further admits that defendant has refused and still fails and refuses to pay to plaintiff the amount of the alleged loss and alleges further in answer to said paragraphs that plaintiff has not suffered any loss entitling it to recover under the provisions of said Municipal Code or the bond issued by defendant pursuant thereto. ’ ’

It is contended that there was no proof of the city ordinance under which the bond ivas given. The suit was on the bond, which, admittedly, was given pursuant to an ordinance. Since the material obligation of the bond upon which the action was brought was pleaded and admitted it was unnecessary to prove other terms, if any, of the ordinance.