Cook v. Covey-Ballard Motor Co.

• Decision Date: 24 January 1927
• Docket Number: 4438
• Citation: 69 Utah 161,253 P. 196
• Court: Utah Supreme Court
• Parties: COOK v. COVEY-BALLARD MOTOR CO.

253 P. 196

69 Utah 161

COOK v. COVEY-BALLARD MOTOR CO.

No. 4438

Supreme Court of Utah

January 24, 1927

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by C. R. Cook against the Covey-Ballard Motor Company. Judgment for plaintiff, and, after a new trial had been granted, plaintiff was permitted to file an amended complaint. Judgment was again entered in plaintiff's favor, and defendant appeals. Reversed and remanded for new trial.

Judgment of the court reversed and cause remanded for a new trial. Costs to the appellant.

Young Boyle & Moyle, of Salt Lake City, for appellant.

O. K Clay, of Price, for respondent.

STRAUP, J. THURMAN, C. J., and CHERRY and HANSEN, JJ., and McCREA, District Judge, concur. FRICK, J., absent on account of illness.

OPINION

STRAUP, J.

The plaintiff and the defendant, August 26, 1924, in Carbon county, entered into a contract by the terms of which the plaintiff purchased from the defendant a Studebaker car, and as part payment delivered to the defendant a Buick car; the balance of the purchase price was to be paid in monthly installments. As claimed by the defendant, the plaintiff defaulted in making the September and October payments, and, on commencing proceedings in Salt Lake county, the defendant demanded and took possession of the Studebaker car in Carbon county. Thereupon the plaintiff commenced this action in Carbon county, which in effect, was one in claim and delivery, wherein he alleged that he, on November 2, 1924, was the owner in possession and entitled to the possession of the Studebaker car of the value of $ 1,150, and that he was the owner and entitled to the possession of the car at the commencement of the action, but that the defendant, in Carbon county, on November 2, 1924, wrongfully came in possession and "still wrongfully holds and retains the possession" of it, under a pretended claim of ownership, to plaintiff's damage in the sum of $ 100. The prayer was that the plaintiff recover possession of the car or have judgment for $ 1,150, its value, and $ 100 damages for its detention.

Later the plaintiff, by leave of court, filed an amended complaint, wherein he alleged that on August 26, 1924, he purchased from the defendant a Studebaker car, at an agreed price of $ 1,150, and in part payment delivered the Buick car to the defendant, which was accepted and received by it at an agreed value of $ 400, and that the balance of the purchase price was to be paid in twelve equal monthly installments; that the defendant represented to him that the Studebaker car was a 1922 model; that the Studebaker car was then delivered to the plaintiff and the Buick car to the defendant; that the plaintiff signed a contract in blank which the defendant agreed to complete and fill in, in accordance with the terms of the contract, as stated; that the defendant filled in the blanks in the contract, but, instead of stating that the purchase price of the Studebaker car was $ 1,150, the contract stated the price to be $ 1,276, and that the balance of the purchase price of $ 876, after giving the plaintiff credit for $ 400 on the Buick car, was to be paid in ten monthly payments of $ 87.60 each instead of twelve monthly payments of $ 62.50 each; that the contract, as filled out, showed the Studebaker car to be a 1920 instead of a 1922 model; that, as soon as the plaintiff received the contract he wrote the defendant, "demanding an explanation, but instead of giving the plaintiff any explanation, the defendant, on November 2, 1924, without plaintiff's consent and acting fraudulently, and upon misrepresentation, took said car from plaintiff's possession, and ever since said date kept and retained said car and converted the same to its own use"; that the value of the car was $ 1,150; that the defendant, acting through its agent, represented to the plaintiff that the agent had legal papers in his possession which entitled him to the possession of the car, "and relying upon said false representations, plaintiff, against his consent and over his protest, permitted the defendant to take the said car." The prayer was that plaintiff be given judgment for the sum of $ 1,150, the value of the Studebaker car, together with interest thereon, less the sum of $ 750 due the defendant.

The defendant answered, admitting that a contract was entered into between the parties, but alleged that the purchase price of the Studebaker car was $ 1,276; that is, $ 1,150 plus insurance and equipments, which added to the $ 1,150, amounted to $ 1,276, and that the defendant received the Buick car from the plaintiff, for which he was given credit for $ 400, and that the balance of $ 876 was to be paid in ten monthly installments of $ 87.60 each. The defendant further alleged that the plaintiff failed and neglected to pay any part of the monthly installments for September or October, whereupon the plaintiff, on the defendant's demand, delivered possession of the Studebaker car to the defendant as security for the payment of the balance due, but that the defendant was ready and willing to deliver the Studebaker car back to the plaintiff upon payment of what was due and unpaid thereon; and otherwise denied all other material allegations of plaintiff's amended complaint.

The case was tried to a jury with the result that a verdict was rendered in favor of the plaintiff and against the defendant, assessing his damages in the sum of $ 400, for which amount judgment was entered. The defendant made a motion for a new trial on all of the grounds specified in the statute for a new trial, which motion was granted. Thereafter the plaintiff asked leave to file a second amended complaint, in which he, in substance, alleged that the defendant on August 26, 1924, sold the plaintiff a Studebaker car at an agreed price of $ 1,150, represented to him that the car was a 1922 model, accepted the Buick car at a valuation of $ 400 as part payment of the purchase price, and agreed that the balance of $ 750 was to be paid in monthly payments of $ 65 each; that relying upon such representation the plaintiff delivered the Buick car to the defendant, and defendant delivered to him the Studebaker car; that he signed printed contracts in blank, to be filled in and completed in accordance with the terms as above stated; that shortly thereafter the defendant mailed the plaintiff the contract which he had signed in blank, but instead of the contract showing the purchase price to be $ 1,150 and providing for installments in the sum of $ 65 per month and the car a 1922 model, the contract recited the purchase price to be $ 1,276 and the balance after deducting $ 400 allowed on the Buick car, to be paid in ten installments of $ 87.60 per month, and described the car as a 1920 model; that, upon receiving the contract, plaintiff notified the defendant that the contract was not in accordance with the real contract between them, "and thereupon repudiated the terms and conditions of the written contract and demanded a car from the defendant in accordance with the terms and agreement of the parties, a 1922 model for the sum of $ 1,150, to be paid at $ 65 per month, instead of $ 87.60, and that the defendant failed and refused to do anything about the matter; and on or about November 2, 1924, without the consent of the plaintiff, the defendant took the Studebaker car from his possession, without returning, or offering to return to him, the Buick car or the value thereof"; that the defendant ever since kept and retained the Studebaker car; that the reasonable value of the use of the Buick car was $ 50 per month, and that the plaintiff was deprived of the use of it to his damage in the sum of $ 700 and was damaged "in the further sum of $ 400, the value of said car." Judgment was thereupon prayed against defendant "for the return of the Buick car or its value in the sum of $ 400, and for special damages for the use of said car in the sum of $ 700."

The defendant objected to the filing of such second amended complaint and demurred thereto upon the ground that it was inconsistent with the original and first amended complaint and, in effect, presented a new and different cause of action. The objections and demurrer were overruled. The defendant thereupon answered, alleging the contract between the parties to be as theretofore alleged by it. It denied that the Buick car was of the value of $ 400, and alleged that it was of the value of not to exceed $ 20, and that the plaintiff had failed to make the September and October payments, as by his contract he had agreed to do; that the defendant because of such nonpayments demanded...