Cox v. General Motors Acceptance Corp.

Decision Date22 March 1932
Docket Number7311.
Citation241 N.W. 609,59 S.D. 588
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Action by O. N. Cox against the General Motors Acceptance Corporation and another. A verdict was directed for named defendant. From a judgment in favor of plaintiff against the Sioux Falls Motor Company, Inc., it appeals.


T. R Johnson, of Sioux Falls, for appellant.

Louis H. Smith, of Sioux Falls, for respondent.


Plaintiff bought an automobile upon conditional sale contract from the defendant Sioux Falls Motor Company in June, 1930. When this action was instituted, General Motors Acceptance Corporation was made a codefendant, but at the close of all the testimony a verdict was directed in favor of General Motors Acceptance Corporation, from which no appeal has been taken; so that phase of the case may be entirely disregarded, and hereafter in using the word defendant the reference will be to Sioux Falls Motor Company. The purchase price of the car was $1,067.05, of which $450 was paid in cash and trade at the date of the contract, leaving a balance of $617.05 due in three equal installments September 20, 1930, December 20, 1930, and March 20, 1931 respectively. Plaintiff failed to pay the September 20th installment, and in October, 1930 (whether upon the 4th, 7th or 15th of that month will be hereinafter considered), defendant repossessed the car. Such repossession was not preceded by written notice of intention pursuant to section 17, Uniform Conditional Sales Act (chapter 137, Laws 1919). Plaintiff claims, and defendant denies, that within ten days after such repossession he tendered to defendant, pursuant to section 18, Uniform Conditional Sales Act, the amount then due under the contract, with interest, storage, etc., but that defendant refused to return the car to plaintiff. Under these circumstances, plaintiff served and filed his complaint herein setting forth two causes of action. The first cause of action treats the refusal of defendant to return the car on plaintiff's tender as a conversion, and asks damages for such conversion in the amount of $504.91, which was the amount that plaintiff at the date of his claimed tender had paid upon the car in question, including the trade-in allowance at the time the contract was made. The second cause of action repleads the facts sufficiently, and alleges plaintiff's damage in the same amount of $504.91, and is obviously based upon the provisions of section 25 of the Uniform Conditional Sales Act providing that, if a seller after retaking fails to comply with the provisions of sections 18, 19, 20, 21 and 23 of the Uniform Act, the buyer may recover his actual damages, if any, and in no event less than one-fourth of all payments which have been made under the contract, with interest.

Defendant's answer admits the sale of the car, the purchase price, and the payments made, and alleges by way of counterclaim a repossession upon default, a retention for ten days, and sale thereafter; and that the automobile at the time of the repossession was not worth more than the balance due on the contract.

The case came on for trial upon the issues so joined, and resulted in a jury verdict for plaintiff in the sum of $270, plus 7 per cent. interest from October 15, 1930. From judgment entered upon such verdict and denial of its application for new trial, defendant has appealed.

Appellant predicates error on several rulings as to admissibility of evidence. We have examined these assignments with care, and it seems plain that most of the rulings were correct and still plainer that none of them were prejudicial. The individual assignments in this group do not appear to require or merit any more detailed statement or discussion.

Appellant questions the sufficiency of the evidence to support the verdict. This point involves the disputed fact questions as to the precise date the car was repossessed and as to whether or not a sufficient tender was thereafter made by respondent. The stories of the parties are utterly conflicting. All admit that the car was brought to the shop of appellant by respondent himself on either the 4th or 7th of October. All admit that the installment due September 20th was then unpaid, and that appellant had been pressing respondent for payment thereof. Respondent contends, however, that he took the car to appellant's garage entirely of his own volition and solely for the purpose of having some repair work done upon the fenders and headlights. Appellant maintains, on the other hand, that, when respondent was not able to meet the installment of September 20th, he was told that he would have to bring the car in and surrender possession thereof under the contract; that respondent said he could not make the payment, but would bring the car in; that he did bring the car in for the specific purpose of surrendering possession thereof to appellant, pursuant to the contract and because of his default. There is some doubt as to whether the car was brought to the shop of appellant on the 4th or 7th of October, but this precise point is not material. It is admitted by all that, when the car was brought in by respondent, some repair work was in fact done thereon, and that on October 15th respondent came to the shop, paid the bill for such repairs in the amount of $26.63, and made a partial payment of $54.91 on the past-due contract installment of September 20th, for which payments appellant gave him receipts. Respondent says that, having made these payments on October 15th, he started to drive the car away, and was then told by appellant that he could not take the car out until he paid everything that was due on the contract, including the delinquent balance on the September 20th installment, and also the future installments of December 20, 1930, and March 20, 1931. Respondent avers that this was the first knowledge or notice of any sort received by him to the effect that the appellant desired or intended to exercise any right to take or hold possession of the car under the conditional sale contract. In any event, respondent did not remove the car on the 15th. This was upon a Wednesday. Respondent testifies that three days later, on Saturday, October 18th, he and his brother went to the shop of appellant with $175 in currency, and tendered the same to appellant in payment of the balance then due upon the contract, together with interest and storage charges, and demanded the car, but that appellant refused the tender, and insisted that respondent, in order to obtain the car, must pay the full amount of the contract. Appellant denies that any tender in any amount whatever was made at any time, denies that it ever demanded the full balance due on the contract, and insists that until the expiration of ten days after repossession it was always ready and willing to return the car to respondent if he paid the amount due under the contract at the time of retaking with interest, storage, etc., as provided by section 18, Uniform Conditional Sales Act.

The disagreement of the witnesses as to essential facts is almost complete. If respondent's story is to be believed, there was no repossession by appellant until October 15th, when appellant, for the first time, purported to hold the car under the contract. On October 18th respondent (or his brother for him and in his presence) tendered the sum of $175 and demanded the car, which demand was refused. Simple computation shows beyond reasonable doubt that the sum of $175 (if tendered as claimed) was adequate in amount to comply with the requirement of section 18, Uniform Conditional Sales Act. The balance due on the September 20th installment was only $150.78, and interest thereon could not exceed $1.72, which would leave $22.50 of the tender to cover the expense of retaking and storage. The car had not been in the shop over fourteen days at the maximum, during most of which, according to appellant's own testimony, it was either being worked on or waiting its turn until appellant could find time to work on it, and there was no expense of retaking, because all admit that respondent brought the car to the shop himself. If respondent made the tender he claims he made, appellant could not take advantage of any acceleration clause in the contract to...

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