163 P. 212 | Cal. | 1917
On plaintiff's motion for judgment on the pleadings the court below entered judgment in his favor for one thousand five hundred dollars. The defendant appeals.
The complaint was in two counts. The first alleged that on or about October 1, 1912, the defendant received from the Metallurgique Motor Company a certain automobile, "under the terms of a certain contract between said defendant and said Metallurgique Motor Company whereby the said defendant agreed to hold the said property on consignment, and when the said automobile was sold, to forward to the said Metallurgique Motor Company the sum of $1,500.00." It is further alleged that on April 22, 1913, defendant notified said Metallurgique Motor Company that he would not carry out the terms of the said contract. Thereafter, it is averred, the said Metallurgique Motor Company sold and transferred said automobile to plaintiff. The defendant unlawfully withholds said property from the plaintiff, to his damage in the sum of five hundred dollars, and the value of said property is two thousand dollars. The second count, after restating many of the foregoing matters, alleges that while the automobile was under the control of the defendant, it was damaged, through *360 the defendant's neglect, in various particulars, to plaintiff's loss in the sum of $1,382.50. The prayer of the complaint was, on the first count, for the return of the automobile or its value, together with the sum of five hundred dollars damages for its unlawful detention, and, on the second count, for $1,382.50, the amount of damage done to the automobile while it was in defendant's possession.
The answer admits the receipt of the automobile under the contract set forth in the complaint. It admits that defendant had refused to carry out the contract unless the Metallurgique Motor Company would repair the automobile, which said company had refused to do. The assignment to plaintiff is denied for want of knowledge or information. The defendant further denies that he unlawfully withholds the property from plaintiff to plaintiff's damage in any sum; he alleges that he is in possession of the automobile, and refuses to deliver the same to the plaintiff, for the reason that plaintiff's assignors are indebted to him in the sum of $204, "as in the counterclaim hereinbelow set out"; that defendant has demanded this sum of plaintiff, and offered to deliver the automobile to him upon his paying said sum, but plaintiff has refused to pay the same. In answer to the second cause of action, defendant denies the allegations of damage to the automobile. There is a further and separate defense based upon the representations of the Motor Company that the automobile was in good condition, whereas, the defendant alleges, it was, in fact, in bad order. In the same defense it is alleged that the Metallurgique Motor Company refused, on defendant's demand, to put the car in good order, and that thereupon defendant demanded that said Motor Company pay him the sum of $149, which he had paid for freight on said car, and the further sum of $5 per month for storage.
In addition, the answer contains a counterclaim for the sum of $204, being the sums advanced on the car by defendant, to wit, $149 for freight and $55 for eleven months' storage at the rate of $5 per month.
Judgment on the pleadings cannot be given in favor of the plaintiff where the answer puts in issue a material allegation of the complaint, or sets up affirmative matter constituting a defense. (Derby Co. v. Jackman,
The plaintiff's allegations and his prayer for relief show very plainly that the complaint was based upon the theory that the automobile was the property of plaintiff, it having been put into the possession of the defendant as the agent, for purposes of sale, of plaintiff's assignor. If this was the correct view, the defendant's position was that of a factor (Civ. Code, sec.
There is still a further ground of objection to the granting of judgment on the pleadings. Defendant denied the transfer and assignment of the automobile by the Motor Company to the plaintiff. An assignment by the Motor Company of its interest in the automobile was not a matter that was presumably within the knowledge of the defendant. A denial for want of information or belief was, therefore, sufficient to raise an issue. (Jensen v. Dorr,
The judgment is reversed.
Shaw, J., and Lawlor, J., concurred.