Highway Trailer of California, Inc. v. Frankel

BISHOP, J. pro tem.* Two questions have to be answered on this appeal taken by plaintiff from a judgment “that plaintiff take nothing.” That which plaintiff tried to take was a judgment for the unpaid balance of two conditional sales contracts, in each of which it was recited that there was a cash down payment to seller of $700, whereas the “cash” [734]consisted of three checks that had been given in the transaction by which the two sales were made and handled. Two of the checks were for $200 each, and the third for $1,000. One of the $200 checks was post-dated. The questions that had to be answered are these: (a) Did the checks constitute two cash payments of $700? (b) If they did not, did that fact render the contracts so invalid that the plaintiff may not recover them? We are of the opinion that the trial court correctly gave a negative answer to the first question and an affirmative answer to the second, and so we are affirming the judgment.

We quote, with our emphasis, some of the terms of section 2982 of the Civil Code as they were in February of 1961: “ (a) Every conditional sale contract for the sale of a motor vehicle, with or without accessories, shall be in writing, and . . . shall contain all of the agreements between the buyer and the seller relating to the personal property described therein. It shall be signed by the buyer or his authorized representative and by the seller or its authorized representative, and when so executed an exact copy thereof shall be delivered by the seller to the buyer at the time of its execution. It shall recite the following separate items as such, in the following order:

“1. The cash price of the personal property described in the conditional sale contract.

“2. The amount of the buyer’s down payment, and whether made in cash or represented by the net agreed value of described property traded in, or both, together with a statement of the respective amounts credited for cash and for such property. ...”

Subdivision (f) of section 2981 Civil Code defined “down payment” this way: “ ‘Down payment’ shall mean that part of the cash price which the buyer pays or agrees to pay to the seller in cash or property value or money’s worth at or prior to delivery by the seller to the buyer of the personal property described in the conditional sale contract. ’ ’

In February of 1961, the plaintiff and defendant Frankel entered into two conditional sales contracts, one covering the sale by the plaintiff to the defendant of an Aeroliner Trailer, the other covering a Trailmobile Trailer. In each contract appears the statement, “2. Down payment cash to seller . . . $700.” These contracts were only partially performed by the defendant and this action was brought to recover the sums still due after repossession.