Correa v. Quality Motor Co.

• Decision Date: 29 May 1953
• Citation: 118 Cal.App.2d 246,257 P.2d 738
• Court: California Court of Appeals Court of Appeals
• Parties: CORREA v. QUALITY MOTOR CO. et al. Civ. 8202.

Page 738

257 P.2d 738

118 Cal.App.2d 246

CORREA v. QUALITY MOTOR CO. et al.

Civ. 8202.

District Court of Appeal, Third District, California.

May 29, 1953.

D. R. Robinson, Auburn, for appellant.

Daniel J. Higgins, Auburn, for respondent.

JONES, Justice pro tem.

At the time of the transaction out of which this case arose, the defendant Phillip S. Snyder was engaged in the motor sales business in the City of Alameda under the firm name and style of Quality Motor Company. This business consisted of an agency for Willys Overland products, and was acquired by Mr. Snyder in January of 1948. At that time it was operated under the name of Quvale Motor Company. One John W. Flint was then selling the products handled by the Quvale Company in Auburn, California. After the purchase of the business and on or about the 14th day of April, 1948, Snyder entered into a written agreement with Flint whereby the latter undertook to sell the products being handled by Snyder on a consignment basis. In this agreement it was provided among other things that, 'When a sale is made, it is agreed that the transaction will be immediately reported to the Quality Motor Co. and all necessary papers and details, including credit information, will be provided promptly to Quality Motor Co. Until other arrangements have been made, it is agreed that all Department of Motor Vehicle Report of Sale forms shall be completed by Quality Motor Co. in Alameda and that John W. Flint will provide a Power of Attorney form made out to P. S. Snyder and signed by the buyer.' (Emphasis added.) Under this agreement vehicles were delivered by Snyder to Flint for sale by the latter.

On the 3d day of August, 1948, the respondent, John Correa, made a down payment of $1,000 to Flint at his place of business in Auburn on the purchase price of a Willys one-ton pickup truck. The balance of the purchase price, wtih sales tax, license fee, and time price differential, amounted to $1,224.42. A sales contract was made by Flint in the name of the Quality Motor Company with Correa to pay this balance in twelve monthly installments of $102.44 each. On the same day, August 3d, the contract was assigned by the Quality Motor Company through Flint to the Placer County Bank at Auburn. On the 28th of August, Correa paid the bank the outstanding blance on the contract, clearing up all indebtedness against the truck.

After Correa had been in possession of the truck for about three weeks and after the balance on the contract had been paid he approached Flint to take it in on payment for a Willys jeep. Correa's testimony as to what occurred between Flint and himself is: 'So I drove this truck home, sold my little jeep, and had this truck, and finally decided that I would rather have had the small jeep or another small jeep than the truck. So I saw John shortly after I took the truck and told him about it; he says, 'Well, I'll tell you,' he says, 'These trucks are hard to get. We don't get them readily, and if you bring it back, I will take it in and, on the company, and resell it.' [Emphasis added.] He says, 'You haven't put on but about fifty miles on it,' which I drove it from here down to Lincoln from Auburn, to Lincoln, I think I went once from Lincoln down to Roseville and back to the house, and up here. He says, 'You bring the truck back and leave it here and I'll sell it.' He says, 'If you want a small jeep,' he says, 'I'll sell, and you can go ahead and when you get the money back,' he says, 'I will let you have a small one.' * * * I says, 'It is brand new, I haven't put on fifty miles on it.' He says, 'In fact the price has went up, I'll sell it as a new truck'. * * * Q. When you gave the car back to him to resell for you, did you get a receipt of any kind for the car? A. No, I didn't, no, I didn't. I just drove it up into his yard there and gave him the keys.'

On December 2, 1948, Flint sold the truck to one Followell for $2,180, receiving as a down payment a jeep valued at $1,495.23, against which there was an indebtedness of $1,110.23, together with cash in the sum of $735, leaving an unpaid balance of $1,114.50, including sales tax of $54.50, and time price differential of $100.31. This balance was covered by a sales contract executed by the Quality Motor Co. as seller by John Flint, and Followell as purchaser. This contract, payable in 18 monthly installments of $67.44, was also assigned to the Placer County Bank with recourse on December 2, 1948, by the Quality Motor Co. through Flint.

Toward the end of December, 1948, Correa, not having been able to get delivery of a jeep as promised, demanded the return of his money. Flint paid him $600 in small amounts over a period of time. In the early part of 1949 Flint disappeared and was next heard from in the armed forces. Correa then filed this suit to recover $1,580, which he claims is the balance due him on the transaction. As defendants, he named the Quality Motor Company, a corporation, John Flint, First Doe, and other fictitious persons. Flint was never served with summons and has not appeared. The Quality Motor Company, a corporation, and P. S. Snyder, doing business under the firm name and style of Quality Motor Company appearing as First Doe, answered. Judgment went for the plaintiff against the Quality Motor Company, a corporation, and Snyder. After the appeal was taken the judgment was amended by a stipulation and order augmenting the record and omitting the Quality Motor Company, a corporation. As the judgment now stands, it is against Snyder alone.

Snyder has not only appealed from the judgment but also from the order denying his motion for a new trial. As an order denying a motion for a new trial is nonappealable, this portion of the appeal should be dismissed. Code Civ.Proc. sec. 963; Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550.

The trial court found that in his dealings with Correa, Flint was acting as the agent of Snyder and within the scope of his authority. This finding is challenged by appellant as being without support in the evidence and appellant urges that for this reason the judgment should be reversed. He makes the argument that the proof conclusively shows that in taking the truck back and disposing of it to Followell Flint acted not for him, but for Correa and at Correa's instance and suggestion. Particular stress is laid upon the agency contract, Snyder claiming that by this agreement the authority of Flint was limited to the sales of vehicles for cash and not upon credit. He also vigorously contends that Flint's authority under the agency contract did not extend to the acceptance of ...