Nicholas v. Harger-Haldeman

Plaintiff, cross-defendant, cross-complain ant and respondent (hereinafter referred to as plaintiff) brought this action against defendant, cross-complainant and appellant Harger-Haldeman (hereinafter referred to as defendant) for conversion of listed personal property consisting of wearing apparel, suitcases, paintings and supplies, a gun, cameras, phonograph and radio, etc., of a claimed value of $4,827.10.

Defendant answered, admitted it repossessed a Chrysler automobile which had formerly been sold under contract to plaintiff and there were contained therein certain listed objects of personal property. However, it alleged that the reasonable value of this personal property was only $250; that this car and its possessions were taken by an independent contractor who had been ordered by defendant to obtain possession of the car for claimed failure of plaintiff to pay $200 due on said car. It claims that when the articles of personal property were found in defendant’s repossessed ear, defendant offered to return such items as defendant received but plaintiff refused. There is a conflict in the evidence as to the items of personal property received and offered to be returned.

It is then alleged, by way of cross-complaint, based on a conditional sales contract (Exhibit K), that on June 26, 1958, in Los Angeles, defendant delivered to plaintiff a 1958 Chrysler automobile; that on July 7, 1958, plaintiff defaulted in a payment of $200 then due and defendant took possession of the ear and thereafter sold it at a private sale for $2,888;

In answer thereto, plaintiff denied that on June 26, 1958, he executed the conditional sales contract pleaded. He claims that he was asked to sign and did sign several papers and that he was told by defendant’s agents that the instruments he signed would be filled out pursuant to the oral agreement of the parties. He denied there was any balance due on the contract or that he agreed to pay a $200 installment on July 7, 1958, and claims that the car was wrongfully taken from his possession.

As a further argument, it is stated that plaintiff was never given a copy of said conditional sales contract as claimed to have been executed by him and accordingly the transaction was null and void and against public policy as provided in Civil Code, section 2982.

In plaintiff’s cross-complaint, it is claimed that agents of defendant falsely and fraudulently represented to him certain facts to induce him to sign the conditional sales contract and that defendant fraudulently filled in a provision for a $200 payment due on July 7, 1958; that plaintiff was told by agents of defendant that he would not have to make such a payment; that after repossession plaintiff demanded that defendant return to him the consideration he paid to them under the contract ($300) as a down payment, plus $107.11 (one monthly payment) and return a Dodge trade-in, but defendant refused. Judgment was sought accordingly and to declare the conditional sales agreement void and to have judgment for the value of the personal property taken, including the value of the Chrysler ear fixed at $4,052.33. Plaintiff also sought $4,827.10 as being the value of the personal property, loss of time and money expended, plus reasonable attorney’s fees and $10,000 in exemplary damages.

Defendant, in answer to plaintiff’s cross-complaint, denied generally these allegations and alleged that plaintiff represented to defendant that he had received a copy of the conditional sales agreement at the time; that if he did not receive it, Civil Code, section 2982, was unconstitutional as applied to defendant; that plaintiff had the exclusive use of the car from June 26, 1958, until August 1, 1958, and the value of its use was $10 per day plus a depreciation value of $1,460.86.

Apparently, for the first time on this appeal, defendant raises the question of the validity of the verdicts as rendered by the jury and the verdicts as recorded by the clerk. The record pertaining to this question is not entirely complete. The reporter’s transcript shows that the general verdicts for the plaintiff were received by the court and the clerk was instructed to read them. They were read as above indicated and the jurors were asked if these were their verdicts as read and the jurors replied in the affirmative. The clerk was directed to record the verdicts. The verdicts as read did not include a general verdict for defendant. At this point an exchange of comments took place between the clerk and respective counsel. Apparently the clerk found that he did not have copies of two forms of verdicts, one containing two special interrogatories and the other a form of punitive damages. Defendant’s counsel offered the clerk his “yellow copy” of a form of verdict. The reporter’s transcript shows that the court reporter typed a form of verdict pertaining to punitive damages. According to plaintiff’s brief, the clerk, upon reading of the verdicts as recorded, erroneously read from a copy of the “yellow copy” provided by defendant’s counsel. It included a general verdict for defendant. The remaining verdicts were recorded as received. Without noticing the error by respective counsel, the clerk, the jurors, or the judge who was merely receiving the verdict in the absence of and for the accommodation of the trial judge, the jury

Defendant challenges the special finding of the jury that there was no breach of the contract by plaintiff, claiming the record affirmatively shows that he was in default from July 15, 1958, until the car was repossessed on August 1, 1958.

Plaintiff’s testimony shows that plaintiff went to defendant’s place of business to look into the possibility of buying a car. Defendant’s agent offered plaintiff $600 for his 1951 Dodge trade-in, with $300 cash as down payment on a New Yorker 1957 model. About this time a “special sale” on a new Windsor Chrysler car, priced at $4,100, was pointed out to the plaintiff and the agent told him that there would be a saving of about $900 from the original price if he took that one and that he would give plaintiff $950 allowance on his old car; that on the payment of $300 down he could drive the car off of the lot. The payments were to be a little over $100 per month but the agent claimed he would have to have the approval of the manager of the company and the controller; that in six minutes the agent returned and said the sale was approved; that he and the salesman signed some papers to that effect and a copy was given to plaintiff but plaintiff claims his copy was placed in the car and was among his possessions when the car was repossessed. Plaintiff testified that on June 24 he gave the agent a $20 deposit and also assigned the pink ownership certificate for his Dodge car over to defendant company. The agent told him that $280 of the balance of the down payment must be paid, so that next afternoon plaintiff brought that sum to defendant and produced as evidence at the trial his bank book as evidence of the withdrawal on that date. At that time defendant’s agent told plaintiff that the car would not be ready until the next day. Plaintiff then returned and defendant’s agent asked plaintiff for the receipt given him for the money and also for his copy of the conditional sales contract signed by them. Plaintiff stated that he had left them at home. Defendant’s agent told plaintiff “something happened” and he would have to have another contract drawn up because he would have to have an additional $200 down payment on the car and he would have to have an additional amount for payment of insurance premium ; that defendant’s agent started to write up a new agreement including $139 more for insurance and the additional $200 payment as indicated. Plaintiff testified that he tried to stop him and said he did not want to sign any more contracts and demanded that his money and the Dodge car be returned to him. Defendant’s agent told him he could not do that because the sale was already closed. Plaintiff refused to recognize a new conditional sales agreement. The agent and the controller for the defendant told plaintiff then that the agreement would

Plaintiff then testified that he lived at the La Quinta Hotel in Palm Springs at the time of the transaction • that he came to San Diego in his ear about July 25 with all of his personal belongings and had not found a permanent place of abode; that he was visiting with his daughter in Chula Vista at the address given on his contract; that at the time of the taking of his car it was locked and plaintiff had the key; that he looked out of the window and saw the car being moved and he gave chase but was unable to stop the driver who was moving very fast; that he called the police and they questioned plaintiff about the payments on the car. Plaintiff told them he had made the first payment thereon and he had not had the car 30 days. He called defendant company in Los Angeles and reported the car stolen. Plaintiff was informed that the car had been repossessed. He told defendant’s agent he had just sent in the $107.11 payment due on the car and defendant’s agent informed him that the repossession was for the $200 "pickup” payment due on July 7, 1959. Plaintiff said he knew nothing of such a payment supposedly due on July 7; that he then told defendant’s agent that he wanted to retain the car and would pay the $200 to secure the return of the car and his personal belongings; that the manager told plaintiff he could send the $200 to him but he could not have

Since the jury found by special verdict that the second conditional sales agreement of June 26 (Exhibit K) was signed by defendant at a time when it was completely filled out and that plaintiff received a copy thereof, all of which is supported by the evidence, the invalidity of the second contract on these grounds cannot be well argued. Other grounds of claimed invalidity of the contract are not well pleaded. It is alleged that on June 26 defendant fraudulently induced plaintiff to sign Exhibit K by falsely representing that the contract would be filled out to conform with their oral agreement and that plaintiff never agreed to pay the $200 installment on July 7, 1958, and that, being of foreign descent and not well-versed in the English language, he believed the contract was filled out according to their oral agreement. In the pretrial statement, plaintiff states that one of the issues to be decided was “whether the conditional sales contract for the sale of the automobile was a valid contract.” The court, in its pretrial order, found the issues to be: “A determination and an adjudication of the contractual relation between plaintiff and defendant and the terms and conditions thereof. . . . Whether or not there was a breach of conditional sales contract legally justifying a repossession of the automobile. . . . Whether or not plaintiff was entitled to a rescission of the contract to purchase.”

The jury, by special verdict, found that plaintiff did not

On Exhibit B the insurance charge was $187, with no time sales differential indicated. This contract, Exhibit B, was marked “Void” by someone. There is no indication that plaintiff had a part in marking it. On Exhibit A, which was signed by both parties, the insurance amount had been erased and raised to the sum of $332. A time sales differential of $758.54 had been added. In the space provided for special pick-up payments there has apparently been inserted “$200 on July 7, 1958, no int.” Above that appear the words “11 days,” and in the agreement to pay such pickup payments it is stated that the payments due on the total sum shall be paid in 36 equal monthly payments of $107.43 beginning August 2, 1958.” The balance was changed to $4,055.96. Under the special pick-up payment item there was an ink notation “37 days.” Credit was noted on the contract for the $20 and the $280 payments made by plaintiff.

Appellant argues that Exhibit K was the written contract and superseded all other negotiations. In K. Lundeen Corp. v. Barlow, 120 Cal.App. 391 [ 7 P.2d 1102 ], it was stated that the rule, based upon Civil Code, section 1625, that a written contract supersedes all negotiations and stipulations concerning the matter between the parties has no application where there was fraud in the inception of the agreement. It is true that a party signing a contract cannot excuse himself and escape its effects by testifying that he did not have his glasses with him at the time he signed, or that he did not read the contract, in the absence of a showing that he was prevented by the agent from reading the limiting clause or was otherwise tricked into signing the document without reading it, and where he made no request to have the contract read to him. (Gridley v. Tilson, 202 Cal. 748 [ 262 P. 322 ].) If the jury believed that the second contract was invalid, then the question arises did it accordingly find that the contract of June 24, either Exhibit A or B, in their original state, was valid and in force on the day of the repossession. If so, no payments were due thereunder at that time and the finding of the jury that plaintiff did not breach his contract as originally executed can be justified.

In determining the question of fraud and the invalidity of Exhibit K, we must consider some of the background of the entire transaction. Here, defendant was dealing with a

In the instant action, it affirmatively appears that plaintiff paid over his $300 as the down payment, title passed to defendant for his Dodge car and defendant thereby became obligated to deliver the Chrysler under that agreement. For some undisclosed reason, defendant’s agents, on June 26, changed their minds and decided to exact a further down payment of $200, plus added insurance. It was at this point that plaintiff demanded the return of his Dodge and down pay

Apparently believing that he was forced to sign a new contract to save his down payment and Dodge car, plaintiff signed Exhibit K, the conditional sales contract of June 26. There was no further consideration for the execution of the new agreement. It was all for the benefit of defendant. The basic doctrine generally required by the several states is that a promise to pay an additional or a greater amount than that which the promisee is already under contractual obligation to the promissor to pay is without consideration. (12 A.L.R. 2d § 2, p. 80; Western Lithograph Co. v. Vanomor Producers, 185 Cal. 366 [ 197 P. 103 ].) Although Exhibits A and B are not pleaded as being the contract upon which plaintiff relies, it is pleaded that Exhibit K, the second agreement, pleaded by defendant, was obtained by fraud and was illegal in certain respects. The pretrial statement of plaintiff’s counsel and the court’s order clearly indicated that one of the issues involved was the validity of the conditional sales contract. Throughout the trial, the validity of Exhibit K was placed in question and evidence was taken on the subject. Furthermore, at defendant’s request, the jury was instructed that if it found the conditional sales contract (Exhibit K) was valid, and plaintiff failed to make the $200 payment called for under its terms, defendant might be entitled to a deficiency judgment. In other instructions, the court told the jury, in effect, that it was up to the jury to determine the validity of Exhibit K and if it found Exhibit K was not executed under the conditions required it should determine whether any earlier writing signed by both parties and intended to be the contract was executed by them, and, if so, what were its terms and conditions. If the jury adopted Exhibit A or B as the enforceable contract, plaintiff had, by its terms, until August 2 to meet the required payments. The jury was further instructed that if Exhibit K was valid and there was a payment due thereon when the ear was repossessed, it must be determined whether there had been a waiver of the right to strictly enforce the contract, where there had been a delinquency and the seller voluntarily accepted it without obligation.

It therefore appears that the validity of Exhibit K was

“Whether defendant gave plaintiff reason to believe that its action in taking the payment of $107.11 credited on July 30, 1960 [sic] would not be regarded as a breach of contract, and whether defendant by subsequent conduct waived the right to repossess is for you, the jury, to decide.”

The court refused this instruction and gave a similar instruction offered by plaintiff. Defendant may not now complain of plaintiff’s instruction where a similar instruction was offered by defendant and refused. (4 Cal.Jur.2d § 557, p. 423; People v. Harlan, 133 Cal. 16 , 23 [ 65 P. 9 ] ; Jentick v. Pacific Gas & Elec. Co., 18 Cal.2d 117 ,122 [ 114 P.2d 343 ].)

Some claim is made by defendant that plaintiff failed to secure and carry insurance on the car. The record indicates that plaintiff was charged with and agreed to pay, as part of the monthly payments on the contract of purchase, a definite amount for insurance charges. Application was made therefore through defendant to process such insurance, with loss payable to defendant. Upon signing the contract, the ear was released to plaintiff. Plaintiff assumed he had insurance coverage. At least he was not notified differently. However, there is a notation on defendant’s records as of July 24 that someone stated the customer had no insurance coverage because he moved from place to place. The claimed right of repossession in this case was for failure to pay the additional $200 demanded. We see no merit to this claim. It was stated in Knarston v. Manhattan L. Ins. Co., 124 Cal. 74 , 77 [ 56 P. 773 ] :

“The law does not like forfeitures, and evidence tending to show the waiver of a forfeiture will be looked upon with kindly eyes. While the time for payment of premiums is a pure matter of contract between the parties, and such time may not be extended by the courts, still forfeitures will be avoided upon any reasonable showing. The amount of evidence demanded to establish a forfeiture is much greater than is needed to establish a waiver. Again, there need be no direct and specific agreement to waive the forfeiture. A waiver may be implied from the acts and conduct of the parties.”

An exhibit shows that the insurance company did issue a policy on June 26 and did not cancel it until August 19, 1958. Another exhibit indicates plaintiff’s account was on June 30, 1958, credited for the sum of $36.80 by reason of the cancellation of the policy.

Judgment affirmed.

Shepard, J., and Coughlin, J., concurred.

A petition for a rehearing was denied October 30, 1961, and appellant’s petition for a hearing by the Supreme Court was denied November 29, 1961.