183 Pa. Super. 645 | Pa. Super. Ct. | 1957
Opinion by
In this action in assumpsit, tried without a jury, the finding was for the plaintiff in the sum of $1,210 and judgment was entered in that amount.
These are the facts which we must take as established by the finding of the .trial court: On July 17, 1952, the plaintiff , sold to the defendant three-used
The Act of May 1, 1929, P.L. 905, §207(a), as amended, 75 PS §37(a) in part provides: “In the event of the sale or transfer of the ownership of a motor vehicle, trailer, or semi-trailer for which certificate of title has been issued, the owner of such motor vehicle, trailer, or semi-trailer shall execute an assignment of the certificate of title to the purchaser or transferee, ... at the time of the delivery to him of such motor vehicle, trailer, or semi-trailer.” (Italics supplied). Under the single question raised in this appeal the defendant argues that because of the express provision of the above statute, as to the assignment of certificates of title with reference to the date of delivery of the motor vehicles, the sales contract in this case was “illegal void and unenforceable”. On that ground the defendant contends that the plaintiff seller is “barred from recovering any unpaid balance of the purchase price.”
Pa. R.O.P. 1030 provides that certain defenses, shall be pleaded in a responsive pleading under New Matter; and Pa. R.O.P. 1032 provides that subject to certain exceptions “A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply . . .” We are unable to agree with appellee however that, since illegality Avas not pleaded in this case, the defendant is barred by the above rule from raising the question here. Goodrich-Amram in §1030-1.3 notes that illegality is an exception to the general rule that affirmative
The fact therefore that illegality was not pleaded is not fatal but the appellant is not aided in the present case by the holding in Brenner v. Pecarsky, supra or in Miles v. Zorzi, 88 Pa. Superior Ct. 231. Both of those cases are distinguished by the fact that in each of them no certificate or assignment of title was ever delivered.
The Act of May 1, 1929, supra, does not require strict compliance with its provisions nor make an agreement for the sale of motor vehicles illegal and unenforceable which does not comply with the Act in every respect. In 2 Restatement, Contracts, §598, it is said in comment (a) : “The statement that all illegal bargains are void is not wholly accurate” and in Comment (b) : “. . . even though a statute so states in terms, 'void’ sometimes means voidable, and unless no other conclusion is possible from the words of a statute, or from the policy on which a statute is based, it should not be held to make all agreements contravening it wholly void.” Appellee has support in relying upon that provision of the Restatement by our holding in Braham & Co. v. Steinard-Hannon M. Co., 97 Pa. Superior Ct. 19, to the effect that an analogous provision, in the Act of May 24, 1923, P.L. 425, as amended, as to assignments of title was a police measure and was not designed as a method of establishing ownership of a car. This language of Judge Keller
Plaintiff’s compliance with the 1929 Act was substantial, and the defendant was not hurt in any respect by the delay of one week in the delivery of assignments of title to the automobiles. On the above principles plaintiff’s judgment may not be disturbed.
Judgment affirmed.