Bishop v. Baird & Baird

• Decision Date: 14 October 1947
• Docket Number: 47048.
• Citation: 29 N.W.2d 201,238 Iowa 871
• Court: Iowa Supreme Court
• Parties: BISHOP v. BAIRD & BAIRD et al.

29 N.W.2d 201

238 Iowa 871

BISHOP v. BAIRD & BAIRD et al.

No. 47048.

Supreme Court of Iowa

October 14, 1947

Baird & Baird, of Council Bluffs, for appellant Hughes Finance Co.

John J. Hess, of Council Bluffs, for appellee Clarence Bishop.

Wright & Kistle, of Council Bluffs, T. W. Bockes and R. B Hamer, both of Omaha, Neb., for appellee Pacific Fruit Express Co.

OLIVER, Chief Justice.

July 6, 1940 plaintiff purchased a used Ford coupe from defendant Hughes Motor Company, under a contract of conditional sale, for $315, payable $75 in advance and $10 the 10th and 25th of each month. The printed contract contained also an assignment of the purchaser's wages. Plaintiff made the payments due July 10th and 25th. August 15, 1940, plaintiff returned the automobile. He contends it was accepted in satisfaction of the contract.

March 1 1945, defendant Hughes Finance Company, through its attorneys, gave plaintiff's employer, Pacific Fruit Express Company, written notice that it held an assignment of plaintiff's wages and the amount due it with interest to that date was $225.92. The finance company directed the employer to withhold this amount from plaintiff's wages and pay the same to it. Accordingly Pacific Fruit Express Company withheld $303.93.

Plaintiff promptly demanded of the Hughes Companies the release of the assignment, asserting it was invalid because the debt had been satisfied in 1940, and for other reasons which need not be here considered. Upon refusal of this demand, plaintiff instituted this action, alleging the assignment was no longer effective, that in filing it with his employer and effectuating the withholding of his wages defendants acted wilfully and maliciously. Plaintiff prayed the cancelation of the assignment and conditional sale contract and judgment for $100 actual damages and $100 punitive damages.

Defendant Hughes Finance Company pleaded the assignment and debt were valid and subsisting and prayed they be so adjudicated and enforced against defendant Pacific Fruit Express Company for $171.56 with interest at 7% per annum from August 20, 1940, until paid, plus attorney's fees and costs. Defendant Pacific Fruit Express Company pleaded it had withheld $303.93 from plaintiff and was willing to pay the same as the court might adjudge.

The trial court found and adjudged the conditional sale contract had been fully satisfied, ordered its cancelation, authorized and directed defendant Pacific Fruit Express Company to pay plaintiff his withheld wages and rendered judgment for plaintiff against defendant Hughes Finance Company for $100 as damages for unlawfully and illegally interfering with the payment of wages earned by plaintiff. Defendant Hughes Finance Company appeals.

I. Appellant contends the court erred in adjudging the conditional sale contract had been satisfied by the agreement had in connection with the return of the car. Plaintiff testified he returned the car, told them he would be unable to pay for it and it was agreed the whole deal was canceled, that he was told a release was unnecessary, that shortly thereafter he received a letter advising him he owed a balance of about $171, that he talked to Mr. Hughes who told him there had been a mistake in failing to have the books show the satisfaction of the account, that plaintiff owed nothing and he (Mr. Hughes) would have their records corrected.

It is undisputed that plaintiff kept the used car for only one month and nine days and paid almost one third of the purchase price and that he surrendered the car and forfeited these payments. Another undisputed circumstance is that for four and one half years thereafter appellant made no claim against plaintiff.

Witnesses for appellant conceded plaintiff voluntarily returned the car on August 15 without demand on their part. However, they disputed plaintiff's testimony relative to the agreement then made. If their recitations are correct, the Hughes Companies not only regained the car and retained the $95 paid by plaintiff, but the transaction also resulted in plaintiff owing them an additional $171.56, with interest, which they were entitled to collect from his wages.

The trial court saw and heard the witnesses. We agree with his finding that the contract was satisfied and canceled by the agreement of August 15, 1940.

II. The conditional sale contract was made by Hughes Motor Company, a corporation operated by Mr. Hughes. The contract was on a printed form of Hughes Finance Company, a non incorporated enterprise owned and operated by the same Mr. Hughes. These two concerns occupied the same premises. Apparently the finance company handled most of the paper for the motor company. Mr. Wind, office manager for the motor company, was manager for the finance company. After the conditional sale contract was executed it was immediately assigned by the motor company to the finance company and according to Mr. Hughes the finance company made payment for said contract by book entry.

Records made by appellant show the conditional sale contract was foreclosed by the finance company, August 20, 1940, and by foreclosure sale held on the premises, the car was sold to the motor company for $50. Mr. Wind testified the sale was conducted by a clerk of the finance company as its agent. However, Mr. Wind executed the bill of sale to the motor company which recites Mr. Wind conducted the foreclosure sale as agent of the finance company. The proof of the posted notice of foreclosure sale under the conditional sale contract was made by affidavit sworn to before Mr. Wind notary public. Mr. Wind testified also he supervised or...