Commercial Credit Co. Inc. v. Willis

• Decision Date: 10 December 1936
• Citation: 171 So. 304,126 Fla. 444
• Parties: COMMERCIAL CREDIT CO., Inc. v. WILLIS.
• Court: Florida Supreme Court

171 So. 304

126 Fla. 444

COMMERCIAL CREDIT CO., Inc. v. WILLIS.

Florida Supreme Court, Division B.

December 10, 1936

Error to Circuit Court, Hardee County; W. J. Barker, Judge.

Action by B. Willis against the Commercial Credit Company Incorporated. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL Malcolm J. Hall, of Tampa, for plaintiff in error.

W. W Whitehurst, of Wauchula, for defendant in error.

OPINION

BUFORD Justice.

The writ of error brings for review judgment in favor of the plaintiff in a suit against the defendant, appellant here. The suit was in trover and conversion.

The defendant pleaded for a fourth plea to the first count the following:

'Fourth: Defendant says that plaintiff on the 18th day of April, 1934, executed a conditional sales agreement wherein he contracted with R. S. Evans Motors of Tampa, Florida, Inc., to buy the automobile described in the first count of plaintiff's declaration and by said contract agreed to make a down payment of $378.00 and the balance to be paid in twelve equal monthly installments of $48.55 payable on the 18th day of each month after date of conditional sales agreement. Defendant further avers that plaintiff in and by said conditional sales agreement agreed that Title to the car mentioned in said agreement should remain in the seller until all amounts due in and by said agreement should be fully paid.

'Defendant further avers that plaintiff in and by said contract agreed that said conditional sales agreement might be negotiated or assigned or the payment thereof renewed or extended without passing title of said car to plaintiff; and further agreed that if he should fail to pay any installment on the conditional sales agreement agreed to be paid, the full amount of the purchase price then unpaid, should become immediately due and payable at seller's option, and seller or his representative might take possession of said car etc., where-ever it may be found; and further agreed that seller might take possession of any other property in the above described motor vehicle at the time of repossession and hold the same temporarily for the purchaser without any responsibility or liability on the part of the seller or its assigns; and further agreed that the term 'seller' shall include any persons or parties to whom seller's title and rights under this contract might be assigned, all of which will more fully appear by reference to a copy of said conditional sales agreement hereto attached marked Exhibit 'A' and hereby made a part of this plea to the same effect as though the said conditional sales agreement were set out herein in haec verba.

'Defendant further alleges that thereafter R. S. Evans Motors of Tampa, Florida, Inc., for value received, assigned and transferred the conditional sales agreement executed to it by plaintiff herein to Commercial Credit Company, Inc.

'Defendant further avers that plaintiff defaulted in the payment due on the 18th day of October, 1934, and defendant alleges that thereafter on the 10th day of November, 1934, defendant elected to repossess said automobile described in the first count of plaintiff's declaration and plaintiff did take possession of said automobile under and by virtue of the terms and conditions of said conditional sales agreement.'

The fourth plea to the second count of the declaration was to like effect.

The plaintiff filed replication. The replication in effect avers that the conditional sales agreement was obtained by R. S. Evans Motors of Tampa, Fla., Inc. It then sets out in detail the alleged fraud alleged to have been perpetrated on the plaintiff by R. S. Evans Motors of Tampa, Fla., Inc. It then alleged that the plaintiff prior to the purchase of the conditional sales agreement by the defendant advised the defendant of the facts and circumstances alleged in the replication and put the defendant on notice of the fraud and deceit practiced upon the plaintiff. And that plaintiff never thereafter at any time recognized, ratified, or confirmed in any manner the contract and agreement or paid any sum, or sums, of money whatsoever thereon. The replication then alleges:

'The said defendant did enter into an agreement with the plaintiff that if plaintiff would pay the sum of money due upon the Original agreed purchase price of the said automobile it would allow to the plaintiff a credit upon said purchase price equal to all charges and expenses which had been added to said purchase price as what is commonly known as 'finance charges,' that is to say, interest, fees and other expenses added by reason of any terms agreed upon for the payment of the full purchase price thereof, and thereupon the plaintiff paid to the said defendant the sum of $75.66 on to-wit, August 18, 1934, that said sum of money was not paid by virtue of said original sales contract but by virtue of an agreement between the plaintiff and defendant by which the same was to be accepted and under which an additional sum of $125.00 was to be paid by the plaintiff to...