Commercial Standard Insurance Co. v. Remay

• Decision Date: 25 October 1937
• Docket Number: 6435
• Citation: 72 P.2d 859,58 Idaho 302
• Parties: COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. W. A. REMAY, Respondent
• Court: Idaho Supreme Court

72 P.2d 859

58 Idaho 302

COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. W. A. REMAY, Respondent

No. 6435

Supreme Court of Idaho

October 25, 1937

ESTOPPEL-WAIVER-PLEADING-AMENDMENT.

1. In action by insurer as seller's assignee of rights under conditional sales contract for claim and delivery of automobile or value thereof because of default in payments and wrongful removal of automobile from another state defendant buyer's motion to amend answer by alleging estoppel was properly refused as offered too late where motion was made after case was called for trial, and insurer's evidence consisted of depositions of witnesses taken in other state.

2. In action by insurer as assignee of seller's rights under conditional sales contract for claim and delivery of automobile or value thereof because of default in payments and wrongful removal of automobile from another state, waiver and estoppel relied on by defendant buyer were special defenses, and evidence thereof was inadmissible under his general denial.

3. Laches when relied upon as a defense must be pleaded.

4. Waiver is not open as a defense under a general denial, and if waiver arises by reason of estoppel, it must be pleaded under principle that, if there is an opportunity to plead estoppel, it must be pleaded, but, where waiver contains no element of estoppel and is not asserted against an opposing litigant, it need not be pleaded.

5. In action by insurer as seller's assignee under conditional sales contract for claim and delivery of automobile or value thereof because of default in payments and wrongful removal of automobile from another state, defendant buyer's testimony to show that seller had waived covenant in contract against removing automobile and that insurer was estopped to assert removal as ground of forfeiture was properly rejected where pleadings did not present issue of waiver or estoppel.

6. In action by insurer as assignee of seller's rights under conditional sales contract for claim and delivery of automobile or value thereof, where defendant buyer cross-complained for damages for wrongful taking and loss of use of automobile, buyer was properly nonsuited as to claim for punitive damages, since his measure of damages, if any was value of automobile when taken from his possession, less amount owed on purchase price, together with interest at legal rate on net balance.

7. Where evidence supporting allegations of complaint in action for claim and delivery of automobile because of default under conditional sales contract and wrongful removal of automobile from another state was undisputed, and evidence tending to establish waiver of performance of contract was inadmissible because not responsive to any issues framed by pleadings supreme court reversed judgment for defendant buyer and ordered a new trial so that parties could amend pleadings to properly frame issues sought to be presented.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Judge.

Action for claim and delivery of an automobile. Defendant cross-complained for damages for the wrongful taking of the automobile and loss of use thereof. Judgment for defendant. Reversed.

Reversed with direction. Costs awarded to appellant.

Anderson, Bowen & Anderson, for Appellant.

Ordinarily evidence of waiver is not admissible unless waiver is pleaded, especially where the party relying on waiver had an opportunity to raise it by proper pleadings. (Bancroft's Code Pleading, vol. 1, sec. 343; Nietzel v. Lawrence, 40 Idaho 26, p. 31, 231 P. 423; McKune v. Continental Cas. Co., 28 Idaho 22, see opinion on rehearing, p. 36, 154 P. 990; Coeur de Alene, City of, v. Spokane, & I. E. R. Co., 31 Idaho 160, at p. 166, 169 P. 930; Mabee v. Continental Cas. Co., 37 Idaho 667, at p. 681, 219 P. 598; Cranston v. West Coast Life Ins. Co., 63 Ore. 427, 128 P. 427.)

There can be no waiver of a default by the buyer unless the seller had knowledge of the default. (Morrison v. Veach, 190 Cal. 507, 213 P. 845; 55 C. J., sec. 1208, p. 1221; Independent Gas etc. Co. v. T. B. Smith Co., 51 Idaho 710, 10 P.2d 317; 27 R. C. L. 904, at p. 908, sec. 5; Craig v. White, 187 Cal. 489, 202 P. 648; Hawkins v. Smith, 35 Idaho 349, 205 P. 188; Idaho Grimm Alfalfa Seed Growers Assn. v. Stroschein, 42 Idaho 12, 242 P. 444, 47 A. L. R. 916.)

A. A. Merrill and L. H. Merrill, for Respondent.

Appellant waived its right to strict performance of the contract by accepting, first: the payments by check, second: past due payments.

Section 28-112, objection to offer of performance:

All objections to the mode of an offer of performance which the creditor has an opportunity to state at the time to the person making the offer, and which could then be obviated by him, are waived by the creditor if not then stated. ( Harding v. Home Investment & Sav. Co., 49 Idaho 64, at page 73, 286 P. 920, 297 P. 1101; Boise Lumber Co. v. Independent School Dist., 36 Idaho at page 778, 214 P. 143; Leaf v. Reynolds, 34 Idaho 643, at 651, 203 P. 458; Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090.)

Where a party by conduct has intimated that he consents to an act which has been done, or will offer no opposition thereto, though it could not have been lawfully done without his consent, and he thereby, induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act to the prejudice of those who have acted on the fair inference to be drawn from his conduct. ( Leaf v. Reynolds, 34 Idaho 643, 203 P. 458; Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090; Dickerson v. Colgrove, 100 U.S. 578, 580, 25 L.Ed. 618.)

MORGAN, C. J. Holden and Ailshie, JJ., concur. BUDGE, J., GIVENS, J., Dissenting.

OPINION

MORGAN, C. J.

--June 18, 1935, respondent entered into a conditional sale contract with Pelton Motor Company, of Los Angeles, California, hereinafter called the seller, to purchase a used Dodge automobile. By a policy issued to the seller by appellant the faithful performance, by respondent, of the conditional sale contract was insured. One of the provisions of the conditional sale contract was that title to the automobile should not pass to respondent until all payments therefor had been made. In payment of $ 145 of the purchase price of the Dodge automobile respondent delivered to the seller a used Oldsmobile. The contract required respondent to pay $ 33.15 July 15, 1935, and $ 27.12 August 5, 1935, and $ 27.12 on the fifth of each month for seventeen months thereafter, to complete the purchase. The contract was executed in California and it was stipulated therein that the purchaser should not remove the automobile, nor permit it to be removed, from that state without the seller's written permission. Paragraph 4 was as follows:

"Possession of said property shall give Purchaser no title or interest therein and no rights except as herein provided. If Purchaser shall fully comply with the terms, covenants and conditions of this contract, and make all of the payments as herein provided, Seller agrees to deliver to Purchaser bill of sale for said property, or if provided for in the State in which this contract is executed, certificate of ownership for said property, properly endorsed. Time and each of the terms, covenants and conditions hereof are hereby declared to be of the essence of this contract, and acceptance by Seller of any payment hereunder, after the same is due, shall not constitute a waiver by him of this or any other provision of this contract."

The contract also provided that should purchaser fail or neglect to comply with any term or condition thereof the seller might declare the purchaser's rights terminated and immediately take possession of the automobile.

Shortly after August 5, 1935, the date on which the first $ 27.12 instalment was paid, respondent removed with the automobile from California to Idaho. Thereafter he made payments to the seller as follows: $ 27.12 by check drawn on Rigby Branch, American National Bank, Rigby, Idaho, dated October 1, 1935; $ 27.12 by check drawn on said bank, dated October 5, 1935, $ 27.12 by check drawn on said bank, dated November 5, 1935; $ 27.12 by post office money order dated December 10, 1935, issued by United States post office at Cleveland, Ohio; $ 27.12 by check drawn on American National Bank, Idaho Falls, Idaho, dated February 14, 1936; $ 27.12 by check drawn on Rigby Branch, American National Bank, dated March 27, 1936. These checks and the money order were received and cashed by the seller. From the foregoing it will be seen the instalment of $ 27.12 which, by the terms of the contract, was due January 5, 1936, was not paid.

Respondent also forwarded to the seller a check on the Rigby Branch, American National Bank, for $ 27.12, dated April 20, 1936, and another, on the same bank, for $ 54.24, dated May 5, 1936, which bore statements showing they were for payments number 8 and numbers 9 and 10. These last mentioned checks were not presented for payment and were returned to respondent who refused to accept them.

Early in March, 1936, the seller made demand on appellant, based on asserted default by respondent in making payments provided for in the contract, and in removing the automobile from California, that it return the automobile to the seller or pay the balance due thereon according to the terms of the policy of insurance. The seller made two assignments of the conditional sale contract and the property therein described to appellant; one dated April 20, 1936, and one dated May 2, 1936.

May 6 1936, this action, for claim and delivery, was commenced by appellant to recover possession of the automobile or $ 450, alleged to be the value thereof, in case...