Adams v. Caruso Enterprises, Inc.
| Decision Date | 18 July 1955 |
| Citation | 134 Cal.App.2d 403,285 P.2d 1022 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Elmer ADAMS and Rose Adams, his wife, Plaintiffs and Respondents, v. CARUSO ENTERPRISES, Inc., a corporation, Commercial Credit Corporation, et al., Defendants, Caruso Enterprises, Inc., Appellant. Civ. 20800. |
Roger J. Pryor, Compton, for appeallant.
Stanley Moffatt, South Gate, for respondents.
By their first amended complaint plaintiffs alleged that on November 8, 1953, in Los Angeles County, they entered into a conditional sales contract with defendant Caruso Enterprises Inc., under the terms of which they agreed to buy a certain 1953 Dodge Coronet automobile from said defendant, that the latter agreed to sell the vehicle to plaintiffs for a total cash price of $3460.77, less $1,075 net allowance for plaintiffs' 1949 Plymouth automobile, leaving an unpaid balance due of $2,385.77. That said balance was to be paid off at the rate of $49.43 monthly and plaintiffs expressly informed said defendant that they could not afford a contract that called for payment of more than $50 per month. It was then alleged, 'That the terms and conditions of said sale were written down on a white memo by Defendant Caruso Enterprises' agent and then said agent had these Plaintiffs sign blank yellow contract forms which said Defendant Company agreed to fill out in accordance with the white memo terms and conditions.' That at the time of the transaction here in question, plaintiffs delivered to defendant seller their Plymouth automobile and took delivery of the Dodge car upon the representations, understanding and agreement with defendant seller that the balance due on the contract would amount to no more than $2,385 and that the installment payments would not exceed $50 per month. That subsequently, 'Plaintiffs received through the mail copies of filled in conditional sales contracts with coupon book calling for said $2,385.00 plus $100.00 for insurance (which Plaintiffs understood they were to pay) and $500.00 finance charges totaling $2,985.00 instead of $2,485.00 as agreed, and calling for payments of $99.43 instead of $49.43 as agreed, per month.' Assignment of the contract to defendant Commercial Credit Corporation is then alleged. The complaint further charged that on December 24, 1953, plaintiffs served defendants with written notice of rescission of the contract and offered return to defendants of the Dodge automobile upon delivery to plaintiffs of their Plymouth car, but the defendants refused to rescind the contract.
The second cause of action adopted the averments of the first and then alleged that upon receipt of the 'completed contract'. which provided for $500 in excess of the orally agreed price, and with payments of $99.43 per month instead of the $49.43 per month as agreed at the time of sale, the plaintiff, Elmer Adams, went personally to Mr. H. J. Caruso, president of the Caruso Enterprises Inc., and protested that the written contract was not in accordance with the oral agreement and the written memo made by the Company's agent at the time of sale, and said plaintiff reiterated the fact that he had informed said Caruso Company at the start that he could not possibly buy any car for more that $50 per month.
Whereupon the said H. J. Caruso personally agreed that if plaintiffs would pay $49.43 per month for three months, he would rewrite said agreement in acordance with plaintiffs' demands. That at that time the said Elmer Adams offered to pay said Caruso the first four monthly payments at $49.43 in advance but the said Caruso then refused to perform this new agreement. It is then alleged that plaintiffs paid to defendant Commercial Credit Corporation, as agent of the co-defendant, two monthly payments of $49.43, each 'on the new oral agreement made by Mr. Caruso, but with the understanding that said payments were on account of a total balance due of $2,485.00'. The third cause of action asked for a declaratory judgment setting forth the rights and duties of the respective parties.
By their answer defendants denied that the monthly installments under the contract were to be in the sum of $49.43, and alleged said payments were to be at the rate of $99.43, per month; denied any oral agreement or contract, and denied generally other allegations of misrepresentation or fraud.
Plaintiffs filed their first amendment to the aforesaid first amended complaint, alleging failure to comply with certain provisions of Civil Code, section 2982, and specifically that no executed copy of said contract was ever delivered.
Defendant then filed its answer and counterclaim, containing general denials, and counterclaiming for plaintiffs' use of said car for 182 days, or $1,820.
During the trial, by leave of court, plaintiffs filed their second amendment to the first amended complaint to conform to proof made at the trial. In this amendment plaintiffs indicated that they elected to stand on their demand for rescission and abandoned their former allegations for reformation of the contract or declaratory relief.
Following trial before the court sitting without a jury judgment was rendered against defendant Caruso Enterprises Inc., for $812.50 and against defendant Commercial Credit Corporation for $247.15. Judgment against the last named defendant was satisfied and is therefore not involved in this appeal. From the judgment rendered against it, defendant Caruso Enterprises Inc. prosecutes this appeal.
Concerning the factual situation surrounding this litigation, plaintiffs testified that on November 8, 1953, they went to the place of business of defendant Caruso Enterprises Inc., where they orally agreed with said defendant to buy a 1953 Dodge automobile for a cash price of $3,460.77, plaintiffs to be given a net allowance of $1,075 for their 1949 Plymouth, leaving an unpaid cash balance of $2,385.77 plus $100 for insurance, with no finance charges, and payments to be $49.43 a month; that payments of $99.43 were never mentioned; that it was agreed that payments would never exceed $50 a month; that $150 was deducted from the original allowance of $1,225 for their Plymouth for rewriting the contract after three payments of $49.43.
Defendant's witnesses DeWitt Leftwich and Henry Joseph Caruso denied any oral agreement contrary to the terms of the written documents.
Following the foregoing conversation, and on the same day thereof, a document consisting of an original white copy and a yellow carbon copy was prepared and signed by plaintiff Elmer Adams and an agent of defendant Caruso Enterprises Inc. The yellow copy was delivered to plaintiff Elmer Adams and the original white copy was retained by defendant Caruso Enterprises Inc. This litigation is predicated upon and the present appeal must be decided on the basis of...
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City Lincoln-Mercury Co. v. Lindsey
...if the buyer cannot see at first glance the data which the statute requires to be called to his attention. Adams v. Caruso Enterprises Inc., 134 Cal.App.2d 403, 408-409, 285 P.2d 1022. The 'Revision Agreement' executed by Lindsey and the bank was not a re-execution or complete substitution ......
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Stasher v. Harger-Haldeman
...are, e. g., Foster v. Masters Pontiac Co. (1958) 158 Cal.App.2d 481, 487-488(6, 7), 322 P.2d 592; Adams v. Caruso Enterprises, Inc. (1955) 134 Cal.App.2d 403, 408 (1), 285 P.2d 1022; Millick v. Peer (1955) 130 Cal.App.2d Supp. 894, 896(1), 279 P.2d Substantial compliance, as the phrase is u......
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General Motors Acceptance Corp. v. Kyle
...103 Cal.App.2d 806, 816(11), 230 P.2d 849 (reasonable value of use of conditionally sold car), or in Adams v. Caruso Enterprises Inc. (1955), 134 Cal.App.2d 403, 408, 409(2), 285 P.2d 1022 (difference between rental value of the conditionally sold vehicle and the automobile traded ...
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Williams v. Caruso Enterprises, Inc.
...in the case of United States Credit Bureau v. Sanders, 1951, 103 Cal.App.2d 806, 230 P.2d 849, and that of Adams v. Caruso Enterprises, 1955, 134 Cal.App.2d 403, 285 P.2d 1022. In the course of the opinion in the first cited case, it is said 103 Cal.App.2d at page 816, 230 P.2d at page 855:......