204 P. 1068 | Idaho | 1922
Lead Opinion
This was an action by respondents against appellants to recover money paid on the purchase price of a Kissel Kar, which they claim was never delivered, and damages in being deprived of its use during appellants’ alleged default.
The answer admits that respondents purchased from the defendant and appellant Buhl Auto Company on July 5, 1917, a Kissel Kar, and alleges that it delivered Kissel Kar No. 3012, which had been used as a demonstrating car, and that respondents executed in payment therefor their title note for $1,425, which note as it now appears in the record recites that it was given for car No. 3012, and contains a condition that the holder might repossess such ear, ‘ ‘ and sell the same at any time they may deem themselves insecure.” Two payments made in September and October following its date are indorsed on the note, aggregating $1,100.
The cause was tried by the court with a jury, and in addition to a general verdict for respondents in the sum of $1,100, the jury answered in the negative interrogatory 1, which required it to find whether the note in question was transferred by the defendant company prior to its maturity, and interrogatory 2, as to whether the Buhl Auto Company received the car back from the plaintiffs or any of the proceeds of the sale, in the affirmative. Judgment being entered upon the general verdict against appellants, they gave notice of intention to move for a new trial, upon the grounds of
Respondents claim, and so testify, that at the time of the execution of the note in question, one Parish, a salesman for appellant company, represented to them that he was about to be called into government service, that while his company was at that time without any new Kissel Kars in stock, if they would sign this note for the purchase price of a new ear, they might use the demonstrating car which he then had until the new ones arrived, and that if they would sign a contract it would enable him to get a commission on such sale that he would not otherwise get. To this respondent replied that if that was the case, he would sign up for a car, as he was willing to help any of the boys who had to go to war, as he could not go himself. Respondents further say that with this understanding the number of the car was not to be inserted in the note which they executed until the new car they were to receive arrived and its number could be determined, and that no number was inserted when they executed the note. The appearance of the instrument now indicates that the number was not written in at the time the note was signed, the number of the car being in a different ink.
It is not in dispute that respondents, soon after giving this note, were furnished with this car, spoken of as a demonstrating ear, the number of which appears to have been 3012, the same as now appears in the title note, and that they attempted to make use of this car for some months following, but with unsatisfactory results, which might have been accounted for by their lack of knowledge of the mechanism and operation of the ordinary motor-car. It also appears that they thereafter made several ineffectual demands for a new car in lieu of this one, but it does not appear that they made any very persistent or positive effort to return the car that they were using.. Ordinarily, this would have been a fatal objection to their right to recover in this action.
The law is well settled that where a party seeks to defeat an obligation that he has given for the purchase price of a chattel, on the ground that it is not the article purchased, or of the same character or quality, he must return or offer to return such defective article within a reasonable time, or he will be held to have waived such defects. He cannot retain such possession and then set up as a defense in an action to recover the purchase price that it was not the article he purchased. The learned .trial judge in this case seems to have properly submitted this question to the jury, for he instructed them that unless they should find that the plaintiffs returned the automobile in question to the defendants, or unless they found that- the defendant company received the proceeds of the sale of said automobile, evidently having reference to its sale after recapture, that the plaintiffs could not recover, and that their verdict should be for the defendants.
It appears from the evidence that the car remained in the possession of respondents until May 5, 1918, when it was seized under the conditions of the title note and sold in June thereafter. There is a sharp conflict in the evidence as to who actually recaptured and sold this car. Appellants contend that they had transferred the note given by respondents to the First National Bank of Idaho prior to its maturity, and that this car was retaken and sold by the bank. Respondents contend that the ear was retaken and sold by appellants, and there is evidence in the record to support such contention. The learned trial judge instructed the jury that “this note is what is known as a negotiable note,” and also “that it is what is commonly designated as a title note,” and that under its terms the holder was privileged to take the automobile and sell the same, and apply the proceeds to the payment of the note.
As to whether or not this note was transferred to the bank before maturity and the ear reposssessed and sold under the conditional sale clause of the note by the bank or appellants in May, 1918, appears to be the principal question in controversy, and to have given rise to the alleged errors upon which appellants rely for a reversal of the judgment below. The grounds upon which appellants base their motion for a new trial are predicated upon the findings of the jury that the note in question was not so transferred to the bank, and further that the Buhl Auto Company received the car back or a part of the proceeds of the sale. In our view of the law, this question is not material, under the issues presented by the pleadings in this action, for the reason that the note in question was not a negotiable instrument.
In Kimpton v. Studebaker Bros. Co., 14 Ida. 552, 125 Am. St. 185, 14 Ann. Cas. 1126, 94 Pac. 1039, it is held that
This disposes of all of the errors that could be considered under appellants’ assignment of error. An inspection of the record discloses the fact that the grounds set forth in the notice of intention to move for a new trial are somewhat broader than those set forth in the motion itself, but they are all based upon the assumption that the note in question was negotiable, and the newly discovered evidence relied upon is directed to facts and circumstances tending to show that the original payee of the note had parted with title to the same before maturity. But if the note is non-negotiable, as it clearly is, this is immaterial, and a new trial was properly denied.
Furthermore, we think that the showing in support of the motion for new trial on the grounds stated both in the notice of intention and in the motion itself is insufficient to constitute accident or surprise, or to show newly discovered evidence, or to support the contention that the evidence was insufficient to justify the verdict, or in any manner to indicate that the verdict would have been different had this testimbny been procured at the trial. While some of the jurors make affidavit that if this missing evidence had been
The issue presented by the pleadings is thus narrowed to whether or not the appellant furnished respondents with the ’ car which they agreed to purchase, and for which the note was given. The question was fairly submitted to the jury, and it found for respondents and fixed the amount of their recovery at the cash payments made upon the obligation given for the automobile which it found was never delivered. This being the correct measure of damages, the court did not err in refusing to grant a new trial, and the judgment below is affirmed, with costs to respondents.
Concurrence Opinion
Concurring Specially. — I concur. There was no error in overruling appellants’ motion for a new trial, which is the only assignment .in the brief.
