Bates v. Simpson

• Decision Date: 11 January 1952
• Docket Number: No. 7686,7686
• Parties: BATES, v. SIMPSON et al.
• Court: Utah Supreme Court

Page 749

239 P.2d 749

121 Utah 165

BATES, v. SIMPSON et al.

No. 7686.

Supreme Court of Utah.

Jan. 11, 1952.

McKay, Burton, McMillan & Richards, Salt Lake City, for appellant.

Davis & Bayles, Weston L. Bayles, all of Salt Lake City, for respondent Haskell N. Bates.

John S. Boyden, Allen H. Tibbals, for respondent W. J. Saunders.

WOLFE, Chief Justice.

This is an action brought by plaintiff, purchaser of an automobile, against two automobile dealers and their surety, for damages suffered when the defendant, Jimmie Simpson, failed to procure title to the automobile for the plaintiff and disappeared without accounting for the proceeds of the transaction. The trial court awarded judgment in favor of plaintiff, Haskell N. Bates, and also cross-complainant W. J. Saunders against The Employers' Liability Assurance Corporation, Ltd., as surety upon the bond of Jimmie Simpson. The Bonding Company, by this appeal, seeks to establish Saunders as the responsible party for its loss as well as Simpson, and thereby indemnify itself against Saunders for the amounts paid.

The Bonding Company sold separate bonds to Jimmie Simpson and W. J. Saunders, both of whom are licensed and bonded used car dealers under the laws of the state of Utah. Saunders and Simpson did business from the same used car lot at 999 South Main Street in Salt Lake City, Utah. Each paid his share of the rent; they shared the telephone, the furnishings and the building that was moved on to the property. A large sign stated, 'Used Cars', with Saunders' name at one end and Simpson's at the other. They were not partners and there is no evidence that they shared profits or losses. They did not represent themselves as partners to the Bonding Company. Simpson financed his transactions with Capitol Finance Company; Saunders dealt with Strevell-Paterson Finance Company. Each dealer had his own cars to sell, and when one of them sold a car belonging to the other, the one whose car was sold paid the one who sold it a flat fee of $25., in contract to sharing the profits.

On November 5, 1949, plaintiff Bates purchased from Jimmie Simpson a 1947 Chevrolet sedan for $1,395. Plaintiff turned in his old car with title for the down payment of $500. A 'Used Car Order' was signed by Bates in which Jimmie Simpson's name appears as dealer. Bates also signed four copies of a 'Purchase Agreement' in which the Seller-Dealer's name was left blank. This Chevrolet sedan had been purchased by Simpson from Brokaw-Bauer, an automobile company in Los Angeles, California. The title papers were to be forwarded to the Continental National Bank and Trust Company by Brokaw-Bauer and picked up, upon payment of the draft by Simpson. Simpson told Bates that title to the car would be retained by the finance company until all payments had been made. Simpson also stated that Bates could drive the car on the California license plates which it carried for three weeks, and that Simpson would take care of the transfer of the plates and the registration of the car.

At the time Bates purchased the Chevrolet, Simpson told Bates that he did not know where the car would be financed; that his partner and finance man, Bill Saunders, would handle the matter. Simpson was unable to finance the car through Capitol Finance Company and asked Saunders to finance it for him, which Saunders did through Strevell-Paterson Company. By financing the car Saunders could earn $70 in the form of a reserve, credited to his account with Strevell-Paterson Company. Saunders, therefore, took the conditional sales contract from Simpson, signed his name to it as 'Seller-Dealer' and received $900.00 from Strevell-Paterson Company, the balance owed by Bates. Saunders cashed the Strevell-Paterson Company check and gave to Simpson his own check for $870.10. Simpson sold the 1941 Ford which had been turned in by Bates, and secured financing for this transaction presumably because he had title to this car. Bates, thereafter, tried to get Simpson to get Utah license plates for the car, but Simpson always gave some excuse and postponed Bates upon this matter. Simpson was last seen by Bates on December 17, 1949 and by Saunders January 7, 1950. He cashed Saunders' check and disappeared without paying the draft or securing title from the bank.

The bank returned the title and registration papers to Brokaw-Bauer in California. Bates still believing that Strevell-Paterson Company had title, made three payments of $66.00 each to the Finance Company. Some time later Brokaw-Bauer of California brought an action in replevin against Bates, by which proceeding they regained possession of the automobile. Bates gave notice of such action to Saunders and to the Bonding Company and requested each to defend the suit. Upon their refusal, it became necessary for Bates to incur the reasonable sum of $205.62 to hire an attorney and for other costs in attempting to protect the Chevrolet against the replevin action.

Bates then brought the present action. The case was tried without a jury and without being able to obtain service of summons upon Simpson. The court entered judgment for Bates for the value of the car he turned in ($500) plus attorney's fees and costs in defending the Brokaw-Bauer action ($205.62), together with the amount paid by him to Strevell-Paterson...