Berry v. Blair

• Decision Date: 28 November 1956
• Citation: 209 Or. 15,303 P.2d 944
• Parties: Don BERRY, Respondent, v. Boyd J. BLAIR and Frank Leslie, d/b/a Blair & Leslie, Appellants.
• Court: Oregon Supreme Court

Page 944

303 P.2d 944

209 Or. 15

Don BERRY, Respondent, v.Boyd J. BLAIR and Frank Leslie, d/b/a Blair & Leslie, Appellants.

Supreme Court of Oregon.

Argued and Submitted Oct. 11, 1956.

Decided Nov. 28, 1956.

Warde H. Erwin, Portland, argued the cause for appellants.On the brief were Barzee, Leedy, Keane & Erwin, Portland.

Thomas H. Tongue, III, Portland, argued the cause for respondent.On the brief were Hicks, Davis & Tongue, and W. M. Dale, Jr., Portland.

Before WARNER, C. J., and ROSSMAN, LUSK, BRAND, PERRY, and McALLISTER, JJ.

BRAND, Justice.

This is an action for conversion of a truck and trailer.From a judgment below for the plaintiff, defendants appeal.

The original defendants included Boyd J. Blair and Frank Leslie, dba Blair & Leslie, United Finance Co., and Walter Green and Todd Green, dba General Transport Company.There remain as defendants now only Blair and Leslie, an involuntary nonsuit having been entered in favor of the United Finance Co., at the close of the plaintiff's case, and there having been no service on the Greens.We shall refer to Blair & Leslie as 'the defendants'.

In his complaint plaintiff alleges that he was the conditional vendee of a truck and trailer, that defendants, action wilfully and maliciously, seized possession of the same and converted them to their own use; that the equipment had a market value of $13,500.The prayer is for this amount in general damages and $10,000 in punitive damages.

The defendants' amended answer denies 'each and every material allegation' of the complaint and alleges as a first affirmative defense that the conditional sales contract provided that in the event of default the seller should have the right to retake the vehicle, that possession after default by the purchaser should be unlawful, and that plaintiff was in default and did not, prior to or following repossession, pay or offer to pay the balance due or offer to pay to the defendants'any payment due under said contract.'As a second defense defendants allege that at the date of repossession plaintiff was indebted to defendantUnited Finance Co. in a sum greater than the reasonable market value of the equipment.The answer further alleges that as a result of the repossession plaintiff's obligation to defendants was canceled, and the prayer is for dismissal of the complaint.

The second amended reply admits that plaintiff was purchaser of the vehicles under a conditional sales contract which was assigned to the United Finance Co., and admits that the contract contained the above-mentioned provision concerning the rights of the seller or his assignee in event of default.The reply denies that plaintiff was in default and denies the other allegations of the first and second affirmative defenses.

For a first affirmative reply it is alleged that on 8 November 1952defendant promised plaintiff that he would be given up to and including 10 November to complete all payments due to defendants, and that plaintiff had made a promise to make these payments on 10 November, defendants thereby gaining the advantage of securing this promise and the opportunity to escape what would be entailed in enforcing their rights.It is further alleged that plaintiff relied upon this promise and in reliance thereon gave his promise to pay on 10 November, and expended time, trouble, and money in securing arrangements with the bank to make such payments, and also in bringing the vehicles to Portland for repairs; and that before he could carry out the agreement defendants seized the equipment on 10 November; that by virtue of the foregoing, defendants waived any rights they would otherwise have had to repossess the vehicles and are estopped from enforcing such rights, and were not entitled to repossess said vehicle.

A motion was then filed by defendants to strike the first affirmative reply, on the ground that it was sham, frivolus and redundant.The motion was denied, whereupon defendants filed a demurrer to the first affirmative reply on the ground that it did not state any defense to the new matter pleaded in the answer.

In support of the demurrerdefendants contended that there was no valid consideration to support any contract allegedly entered by the parties, and that plaintiff did not allege sufficient facts to show a change of position on which to predicate an estoppel, and that the facts on which plaintiff relied were for the exclusive benefit of the plaintiff and therefore could not be the basis of an estoppel.It is stated in the printed abstract that the demurrer was overruled by the court, but we find no such order in the record here.However, the cause proceeded to trial on 5 November 1953.A verdict was had in favor of the plaintiff and his damages were assessed in the sum of $9,660.45, the element of punitive damages having been removed from the jury's consideration.Judgment was entered accordingly on 12 November 1953.

The ultimate question is whether the defendant converted the truck and trailer.In an action of trover for conversion the plaintiff must allege and prove that he had the right to the immediate possession of the property at the time of the alleged conversion.53 Am.Jur. 937, Trover and Conversion, § 168;Austin v. Vanderbilt, 48 Or. 206, 85 P. 519, 6 L.R.A.,N.S., 298;Hunt v. First National Bank, 102 Or. 398, 202 P. 564;Derby v. Newton, 142 Or. 427, 20 P.2d 439;Cross v. Campbell, 173 Or. 477, 146 P.2d 83.The conditional sales contract under which the plaintiff held and claimed the right of possession reads, in part, as follows:

'Time is of the essence of this contract, and if Purchaser default in complying with any of the terms hereof, Seller, at his option, and without notice to Purchaser, may declare the whole amount unpaid hereunder immediately due and payable, or Seller may take immediate possession of said property without demand (possession after default being unlawful), including any equipment or accessories thereto; and for this purpose Seller may enter upon the premises where said property may be and remove same.Seller may resell said property, so retaken, at public or private sale, without demand for performance, with or without notice to Purchaser (if given, notice by mail to address below being sufficient), with or without having such property at place of sale, and upon such terms and in such manner as Seller may determine; Seller may bid at any public sale.From the proceeds of any such sale Seller shall deduct all expenses for retaking, repairing and selling such property, including a reasonable attorney's fee.The balance thereof shall be applied to amount due; in case of deficiency Purchaser shall pay same with interest.Seller may take possession of any other property in above described motor vehicle at time of repossession and hold same temporarily for Purchaser without liability on the part of Seller.Seller shall have the right to enforce one or more remedies hereunder, successively or concurrently.'

The undisputed evidence is that the plaintiff had been in serious default under the contract prior to the time of the taking.In view of the provision of the contract 'possession after default being unlawful', and of the fact of default in payments, it follows that the plaintiff could not recover unless he established a contract extending the time within which to make payments, or a waiver of the right to take possession under the terms of the contract, or an estoppel barring the exercise of such right.The issues of the case are thus narrowed down to the question as to whether or not the plaintiff was entitled to prevail by reason of the existence of such contract, such waiver, or estoppel.The issues must be considered in the light of the fact that the plaintiff had a verdict of the jury in the amount of $9,660.45 which is binding upon us if supported by substantial evidence and in the absence of error of law.A determination of these issues requires a consideration of the facts out of which the action arose.

Desiring to go into business, plaintiff, Don Berry, purchased, prior to 21 March 1951, a logging trailer from Pierce Trailer & Equipment Co., giving his personal note for the purchase price of $3,000, both parties having in mind that plaintiff would then purchase a truck, and that he would use the trailer as additional security in that transaction.On 21 March 1951plaintiff went to the lot of defendants Blair and Leslie for the purpose of purchasing a truck which he knew they had listed for sale, and which was owned by Walter and Todd Green, dba General Transport Co.The plaintiff was without funds with which to purchase the truck which was for sale by the defendants Blair & Leslie, as dealers, but plaintiff owned the trailer for which he had given his note for $3,000.The purchase price of the truck was $10,750.Plaintiff gave Walter and Todd Green a note for $3,750, leaving a balance to be paid of $7,000.This balance was financed as follows: The trailer was, in effect, conveyed to the defendants Blair & Leslie who were to be the conditional vendors of both truck and trailer.The total obligation of plaintiff as purchaser was to be $13,750, represented by the note to the Pierce Trailer & Equipment Co. for $3,000 owing on the trailer purchase, a note to Walter and Todd Green for $3,750 as part payment for the truck, and a balance of $7,000.The $7,000 balance was handled as follows: Defendants Blair & Leslie, as conditional vendors, agreed to sell the truck and trailer to plaintiff, who was to pay to the defendants $8,423.82 in 18 monthly instalments of $467.99.The total of $8,423.82 represented the $7,000 balance plus interest and carrying charges.The contract acknowledged a down payment of $3,000 which represented the value of the trailer, and which, being included in the contract, stood as additional security.The contract was executed on 21 March 1951 and on the same day was assigned to the United Finance Company.The ...