146 S.E. 723 | W. Va. | 1929
Defendant, being engaged in the automobile business at Mullens, West Virginia, sold, by conditional sales contracts, reserving title, to John Shade and Eugene Kersey each an automobile and took from the former his note in the sum of $477.33 and from the latter his note for $687.98, for balance of purchase money, each note being payable in installments. Defendant assigned these notes and contracts to the plaintiff, and guaranteed payment. Thereafter, each of said purchasers defaulting in payment and absconding with his automobile, the defendant, on demand of the plaintiff, paid to the plaintiff on each of said notes a portion thereof, but declined to pay the balance, alleged by the plaintiff to aggregate $552.94, for which amount, with interest, plaintiff prosecutes this action.
Defendant plead the general issue and asserted off-sets in the aggregate of $700.00, composed of $198.90 paid by him to the plaintiff on the Shade note, $286.70 paid on the Kersey note, and $177.84 on the note of Lee Pope which note had been assigned to plaintiff by defendant together with a contract of sale in the same manner as the other two notes and contracts had been assigned, and $36.56 interest. The gravamen of the defense is that a duly authorized representative of the plaintiff had assured defendant that the plaintiff would cause the three said several conditional sales contracts to be recorded (the statute requires filing merely, Acts 1925, chapter
At the trial, the plaintiff introduced the Shade and Kersey notes and assignments thereof made by the defendant to the plaintiff, and the defendant's guarantee of payment of said notes. Thereupon the defendant to sustain the defense interposed by him testified that the negotiations between defendant and the plaintiff for the assignment of said notes and contracts by the defendant to the plaintiff were conducted between the defendant and one Clark, an agent and representative of the plaintiff; that he asked Clark whether he (defendant) should record the conditional sales contracts or whether that would be done by the company, and that Clark replied: "We will take care of that, all you have to do is to sell your automobile and fill in your contract;" that pursuant to a written inquiry later made by him he received a letter from plaintiff's Bluefield office advising: "For your protection and our protection, all conditional sales contracts are recorded in the county clerk's office in the county in which the sale is made;" that the said letter became lost and he was therefore unable to produce it at the trial; that the plaintiff did not record said contracts, and that the defendant did not ascertain that fact until about the first of December, 1925, after he had made payments to the plaintiff on account of each of said assignments; that Pope, Shade and Kersey *655 all disappeared and defendant was unable to locate any of them; that the automobile which defendant had sold to Kersey was located by defendant in the State of Kentucky where Kersey is supposed to have sold it to another party; that this party declined to surrender the automobile to defendant when he demanded the return of the same. Though the defendant testifies that he thus located the Kersey car, he does not say he was able to ascertain what had been done with the Pope and Shade cars. The clear inference is that he did not know what had been done with them. Certain it is that he did not in his testimony undertake to say where they were.
On behalf of the plaintiff, in rebuttal, the defendant's testimony is denied both as to the alleged understanding with Clark and as to the letter which defendant said he had received.
Either party may demur to the evidence introduced by his adversary in support of the affirmative of an issue the burden of which is upon him. Bennett v. Perkins,
Under the demurrer we must take as true the defendant's *656
testimony both as to the alleged statement of Clark and as to the letter which the defendant says he received from a representative of the company. "Upon demurrer to the evidence the demurrant will not be heard to discredit the verity of his opponent's testimony." Central Acceptance Corporation v. MotorCompany,
Now as to the Kersey machine. It could not be repossessed in the State of Kentucky because the conditional sales contract was not recorded in West Virginia. As stated in Finance Company
v. Dudley,
The defendant's contention that the judgment of the trial court may not be reviewed here because of the plaintiff's *658
failure to move for a new trial is not well taken.Proudfoot v. Clevenger,
For reasons above set forth, we are of opinion that the demurrer to defendant's evidence ought to have been sustained. Therefore, the judgment of the trial court will be reversed and judgment entered here for the plaintiff in the amount ascertained for it by the jury in the conditional verdict.
Reversed and rendered.