Baum v. Aleman

This is an appeal from a judgment in favor of the defendant and against the plaintiffs adjudging that the plaintiffs take nothing by virtue of their complaint and that the defendant recover from them the sum of $2,042 on a cross-complaint.

On December 5, 1952, the defendant purchased an automobile from the plaintiffs under a written contract specifying a total cash price of $2,230.80. This contract recited a total down payment of $788.80 which consisted of a recited cash payment of $388.80 and a trade-in allowance of $400. The evidence showed that the purchaser was unable to make the cash payment of $388.80 and in lieu thereof paid the sum of $120 in cash and gave a promissory note in the sum of $268.80 for the balance. The written contract did not set forth the time price differential or the contract balance as required by law. (Civ. Code, § 2982, subd. (a).)

On October 7, 1954, the plaintiffs repossessed the automobile in question, contending that the defendant had defaulted under the contract. After repairing and reselling the automobile the plaintiffs sued the defendant for an alleged balance due.

The defendant joined issue with the material allegations of the complaint; as a special defense set up the unenforceability of the contract upon the ground that it failed to comply with the provisions of section 2982 of the Civil Code; and filed a cross-complaint.

The first cause of action in the cross-complaint alleged the failure of the contract to comply with the provisions of the code section in question; the transfer of defendant’s auto

The second cause of action alleged an indebtedness under the common count for money had and received.

The plaintiffs’ answer to the cross-complaint contained a denial of the material allegations thereof and specifically denied that “the cross-complainant has suffered damages in the sum of $2,127.45, or has suffered damage in any sum at all.”

The evidence adequately sustains the finding of the trial court that the contract did not set forth the time price differential or the contract balance and for this reason failed to comply with the provisions of subdivision (a) of said section 2982. In the eases of Carter v. Seaboard Finance Co., 33 Cal.2d 564 [ 203 P.2d 758 ], and Estrada v. Alvarez, 38 Cal.2d 386 [ 240 P.2d 278 ], the Supreme Court held that the provisions of the code section under consideration were mandatory and a failure to substantially comply therewith rendered a contract for the sale of an automobile unenforceable. That court further held that the buyer was entitled to recover any money which he had paid the seller under the contract. The plaintiffs contend that an amendment to the code section in 1949, which was subsequent to the transactions involved in the two eases heretofore considered, constitutes a declaration by the Legislature of an intention contrary to the interpreted intention of the Legislature as set forth in the Supreme Court decisions. Prior to the 1949 amendment, subdivision (e) of said section 2982 expressly stated that a failure to comply with the provisions of subdivisions (c) and (d) of said section rendered the contract unenforceable and entitled the buyer to recover from the seller three times the total amount paid under the contract. The 1949 amendment, in substance, retained the language of the code section except that the right of the buyer to recover three times the amount he had paid under the contract was reduced to the exact amount he had paid under the contract. In the two cases referred to, the Supreme Court, in substance, held that even though subdivision (e) of the code section declared only that a violation of the provisions of subdivisions (c) and (d) thereof rendered the contract unenforceable, it was the intention of the Legislature that the provisions of subparagraph (a) of the code section were mandatory and a failure to substantially

The plaintiffs cite the ease of Millick v. Peer, 130 Cal.App.2d Supp. 894 [ 279 P.2d 212 ], decided by this court, which held that the contract there under consideration substantially complied with the provisions of said section 2982 and therefore was enforceable. However, the plaintiffs rely upon a statement in this decision that the penalty of unenforceability only applied to a failure to comply with the requirements of subdivisions (c) or (d) of said section 2982 and not to those of subdivisions (a) and (b) of that section. This statement was in disagreement with the decisions in Carter v. Seaboard Finance Co., 33 Cal.2d 564 [ 203 P.2d 758 ], and Estrada v. Alvarez, 38 Cal.2d 386 [ 240 P.2d 278 ] ; was not necessary to the decision in Millick v. Peer, 130 Cal.App.2d Supp. 894 [ 279 P.2d 212 ]; and cannot be controlling in the case at bar.

The decision of the trial court holding that the contract at bar was void; denying relief to the plaintiffs who relied thereon; and finding that the defendant was entitled to recover from the plaintiffs any damage sustained as a result of the void contract, must be affirmed.

However, the amount of defendant’s damages is not necessarily determined by the amount which he paid to the plaintiffs. Although the defendant paid the plaintiffs $2,042.25 he was not damaged in this amount. In the case of United States Credit Bureau v. Sanders, 103 Cal.App.2d 806 , 816

The record in this case indicates that the trial court did not give any consideration to the fact that the defendant may have owed the plaintiffs for the use of the automobile in question. Although there was no opinion evidence to guide the court with respect to the reasonable value of such use, nevertheless there was evidence before the court from which it could have made a finding as to the reasonable value of such use.

Hilliard, J., and Mitchell, J., concurred.