Commercial Credit Equipment Corp. v. Johnson, 11114
| Decision Date | 06 September 1973 |
| Docket Number | No. 11114,11114 |
| Citation | 209 N.W.2d 548,87 S.D. 411 |
| Parties | COMMERCIAL CREDIT EQUIPMENT CORPORATION, Plaintiff and Respondent, v. Leonard JOHNSON, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Timothy J. Nimick, of Woods, Fuller, Shultz & Smith, Sioux Falls, for plaintiff and respondent.
Gale E. Fisher, of May, Johnson & Burke, Sioux Falls, for defendant and appellant.
Plaintiff, Commercial Credit Equipment Corporation (hereafter referred to as CCEC), brought this action for claim and delivery of a Case tractor against defendant Johnson who, in December 1968, was the owner of a Model 1031 Case tractor (No. 1), which he purchased from a dealer in 1966. For convenience it is referred to by the first two digits of its serial number, '82'. Johnson financed part of the purchase price which was paid up in early 1967.
The dealer phoned Johnson in the latter part of 1968 and told him he had a good prospect for the 1966 tractor and that if he was interested in trading it in on a new tractor he should bring in his 1966 tractor; Johnson did so on December 2, 1968. The dealer did not have a 1968 tractor on hand at that time on he told Johnson to sign a Purchase Agreement in blank and when a new tractor was received the dealer would fill in the model number, serial number, etc. and deliver it to the Johnson farm. As Johnson was leaving on an extended buying trip and vacation, he signed the agreement in blank.
The dealer filled in the Purchase Agreement describing the 1966 Model 1031 Case tractor, serial number '82', which was the identical tractor Johnson owned and had delivered to the dealer in exchange for a 1968 tractor he had ordered. The dealer then sold and assigned the agreement to CCEC for $10,000.
In March 1969, the dealer notified Johnson his new tractor (No. 2) was in stock and to pick it up. It soon developed mechanical trouble and Johnson returned it and demanded a new one. Until such time as the replacement was available the dealer let him use a demonstrator (No. 3) until July 1969. On August 30th the dealer made delivery of the Model 1031 replacement tractor (No. 4) and was paid $1,200 by Johnson; this payment together with the 1966 tractor (No. 1) he had traded in was payment in full for the 1968 (No. 4) tractor.
On September 10, 1969, a fieldman of CCEC checked this tractor. Johnson checked the serial number and found it was not an '82' series but an '83' series. The fieldman noted this in his call book. After Johnson signed the Call Report the fieldman added the reason for the mixup in the serial numbers as being the exchange of tractors by the dealer.
The same month the dealer called Johnson to tell him of the arrival of a new Model 1071 tractor, and said he wanted Johnson to try it. The tractor (No. 5) was delivered for his use 'on approval'. After using it through the fall of 1969 Johnson decided to trade his Model 1031 tractor (No. 4) in one the Model 1971 tractor (No. 5); however, no formal agreement or Purchase Agreement was signed for this or any tractor except the one signed in blank in which the 1966 Model 1031 (No. 1) tractor (Owned by Johnson) was described. The Model 1071 tractor (No. 5) was returned to the dealer in February 1970.
Prior to that time a field agent of CCEC visited Johnson and saw he had the Model 1971 tractor (No. 5) which he had been using. Johnson testified he owed money on the Model 1071 tractor, and when the agent was talking about a contract Johnson assumed he was talking about payments on the Model 1071.
On November 4, 1969, CCEC received a payment of $3,335.63 from the dealer. As this was a very unusual procedure the ledger card was marked with a red letter 'D' to represent dealer payment. Again a CCEC agent called on Johnson on December 30, 1969. The agent testified Johnson told him the reason he had made the $3,335.63 payment to the dealer was to take care of the installment payment plus an open account balance. Johnson denied making any such payment.
Johnson testified that during the latter part of February 1970, the dealer stopped at his farm where he was recuperating from a serious illness and took back the Model 1071 tractor (No. 5) on which he had paid $3,101.86 to J. I. Case Corporation on December 15, 1969, on an oral agreement.
In the fall of 1970 when Johnson received notices from CCEC that a payment was due October 1st, he went to see the dealer about why these notice were directed to him. The dealer said they owed money to CCEC but had no money to make the payment. At the request of the dealer, on October 12, 1970, Johnson signed and mailed to CCEC a letter stating he would be making a payment on his contract tract it two or three weeks, and about the same time the dealer by letter made a written commitment that they would make a payment of $3,335.63 to CCEC the first week of November. Johnson was of the impression he owed some money on one of the tractors under an oral contract.
At this point Johnson decided he ought to consult a lawyer who set up a meeting with CCEC, the dealer and Johnson. At this meeting CCEC accepted a check from the dealer for $1,000 and another postdated check for $2,335.63 which was unpaid as the dealer filed a petition in bankruptcy.
CCEC commenced this action in claim and delivery alleging it was entitled to the immediate possession of the '83' tractor substituted for Johnson's own '82' tractor described in the Purchase Agreement signed by defendant and assigned to CCEC. It appears the sheriff did not take possession of any tractor as defendant did not have possession of an '82' tractor, so CCEC attempted to 'levy' on the '83' tractor. Johnson's counsel made a $10,000 deposit to secure delivery of either tractor. Near the end of the trial it appeared the whereabouts of the '82' was unknown and plaintiff admitted when it brought the action it was not to recover possession of the '82' tractor (No. 1), as it made no claim as to it and it does not appear that anyone knew what became of it. Likewise, it is not clear upon what bases plaintiff could assert a claim to the '83' tractor for it is not claimed Johnson ever signed a purchase agreement for it, though it does appear he signed a form stating the serial number on a Case 1031 tractor should have...
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