Dearborn Motors Credit Corp. v. Neel
| Decision Date | 11 April 1959 |
| Docket Number | No. 41189,41189 |
| Citation | 337 P.2d 992,184 Kan. 437 |
| Parties | DEARBORN MOTORS CREDIT CORPORATION, Appellee, v. A. S. NEEL, Appellant, and W. P. Astle, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action for the recovery of the deferred time balance in a conditional sales contract for the sale of a 'new' Ford diesel tractor by the assignee of the seller, and the purchaser cross-petitions for damages alleging fraud against the seller and the assignee on the ground that the tractor was misrepresented as new when in fact it was used, it is held material issues of fact were framed by the pleadings, as more specifically set forth in the opinion, and the trial court erred in sustaining motions for judgment on the pleadings and the opening statement of the cross petitioner.
2. A motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the well-pleaded and conceded facts. It presupposes a lack of issue of fact. If there is no issue of material fact presented by the pleadings, then it becomes a question of law as to which party is entitled to judgment. But if a material issue of fact is presented and remains undetermined, a judgment on the pleadings is improper. Such motion admits the truth of all well-pleaded facts in the pleadings of the opposing party and the court in ruling such a motion is not justified in reaching out and making additional facts a part of the pleadings to which a motion is lodged, and for such determination the pleaded facts of the moving party not conceded are to be ignored.
3. A motion for judgment on the pleadings and on the opening statement of a party does not alter the rule in Syllabus p2 where the opening statement merely relates the issues framed by the pleadings and incorporates the pleadings therein.
Archie T. MacDonald, McPherson, argued the cause, and Russ B. Anderson, McPherson, was with him on the briefs, for appellant.
Roy L. Rogers, Wichita, argued the cause, and H. E. Pat Healy, Wichita, was with him on the briefs, for appellee Dearborn Motors Credit Corp.
Kenneth G. Speir, Newton, argued the cause, and Vernon A. Stroberg, Herbert H. Sizemore and Richard F. Hrdlicka, Newton, were with him on the briefs, for appellee W. P. Astle.
This action appearing for the second time (see Dearborn Motors Credit Corporation v. Neel, 181 Kan. 598, 313 P.2d 243) involves the sale of a Ford diesel tractor. The plaintiff seeks recovery of the balance of the purchase price due and the purchaser cross-petitions for damages on the ground of fraud, among others.
Stripped of complicated facts the question presented on appeal is whether issuable facts were presented to the trial court by the pleadings of the respective parties.
Featured in the pleadings are two written instruments. The first in point of time, to give the facts chronologically, is a retail purchase order wherein A. S. Neel (defendant-appellant) on January 4, 1954, entered his order for the following:
A down payment of $32 was made leaving a balance of $1,600 payable March 2, 1955, and March 2, 1956. The order was signed by A. S. Neel and accepted by W. P. Astle (defendant-appellee), the implement dealer from whom the purchase was made. A salesman by the name of P. A. Larson made the sale of the Ford diesel tractor in question. On the left lower corner is written in Astle's handwriting: 'Preston--This deal is OK provided you can get at least 900/00 cash, Buck.' ('Preston' refers to P. A. Larson and 'Buck' is W. P. Astle.)
A specific recital on the lower left-hand corner of the order reads: 'This order when accepted shall be subject to conditions and applicable warranties printed on reverse side.' Among the conditions on the reverse side is No. 7: 'Purchaser acknowledges that no warranties or representations, either express or implied have been made to him with reference to the new items, if any, hereby ordered, except as hereinafter set forth, * * *.' Below the numerated conditions is a new tractor warranty.
Thereafter on the 12th day of March, 1954, a written purchase agreement was executed on a form captioned 'Dearborn Motors Credit Corporation'. The seller was indicated as 'Astle Tractor, McPherson', and the customer's name as 'A. S. Neal, Windom, Kansas'. The agreement recites:
'Above seller hereby sells, and undersigned buyer hereby purchases on the terms and conditions set forth below And On The Reverse Hereof, the following personal property in its present condition, delivery and acceptance of which buyer hereby acknowledges:'
The make and type is described in the purchase agreement as a new Fordson, model FMD11. It lists the cash sales price as $3,050 and the sales tax as $32. It further indicated a documentary charge of $2 and an investigation fee of $2, for a total of $3,086 less trade-in of $1,450 for a balance of $1,636 unpaid cash balance. Further written therein, the buyer promised to pay to the order of seller the deferred time balance of $1,959.90 to be paid in three equal annual installments of $653.30 each beginning December 12, 1954. The agreement recited delivery of the property on March 12, 1954. It was signed by A. S. Neel and accepted by the signature of P. A. Larson on a signature line calling for the signature of 'Dealer Owner, Partner, or Officer.' On the reverse side of the purchase agreement W. P. Astle, owner of Astle Tractor, by his signature assigned the contract to Dearborn Motors Credit Corporation (plaintiff-appellee), hereafter referred to as Dearborn. Also on the reverse side of the purchase agreement the following pertinent recitals were made:
' Buyer agrees and represents that buyer will not assert any claim or defense which buyer might have against seller in any action by or against Dearborn Motors Credit Corporation to obtain or retain possession of the property or for any unpaid balance hereunder, or otherwise.'
It is further recited that the purchase agreement constitutes the entire contract between the parties and that:
' * * * No warranties, express or implied, and no representations, promises or statements have been made by seller unless endorsed hereon in writing * * *.'
Astle assigned the contract at a discount to Dearborn, and upon Neel's default in payment Dearborn commenced the present action by filing its verified petition against Neel to recover the total of the deferred time balance of $1,959.90 then due and unpaid by reason of an acceleration clause.
Dearborn's petition, among other things, alleged that it was a bona fide holder in due course of said purchase agreement and note and set up the purchase agreement as an exhibit which was incorporated by reference.
Astle was made an additional party defendant in the trial court on March 5, 1956, and entered his appearance.
Neel in his verified answer and cross petition against Dearborn and Astle admitted execution and delivery to Astle of the purchase agreement and that Dearborn was the owner of said purchase agreement by assignment or transfer from Astle. In his answer Neel alleged the difference between the cash balance and the deferred time balance of $323.90 was in excess of 10% per annum and usurious in the amount of $34.30. Neel specifically denied that Dearborn was a bona fide holder in due course of the purchase agreement.
In his cross petition Neel alleged that the tractor described in the purchase agreement was represented by Astle and his salesman to be a new Ford diesel tractor; that such representation was false and knowingly and fraudulently made by Astle and his salesman for the purpose of defrauding and inducing Neel to purchase said tractor, and that he relied upon the representation; that Dearborn 'knew or should have known of such representation and its falsity and as assignee of the purchase agreement attached to plaintiff's petition, is charged with knowledge thereof;' that in fact the tractor was not new, but had been used by Astle as a demonstrator on several plowing demonstrations prior to its being sold to Neel; that various mechanical defects developed and that the tractor failed to operate properly as a new tractor in that it bent its push-rods and got out of time; that it did not develop adequate speed in plowing and farming work; that the fuel injection system did not operate properly and the motor used excessive oil; that Astle and his salesman further represented to Neel that the Ford diesel tractor would be equipped with brackets and attachments so that Neel could use and operate his post-hole driller, blade and mower then owned by him; that said representations were falsely and fraudulently made to induce him to purchase the tractor and he relied upon such representations; that said representations were false in that said Astle did not furnish said brackets and attachments at any time, and for the reason that in truth and fact no such brackets and attachments were being manufactured for said diesel tractor, and for the further reason that it did not come equipped with them. By reason of this failure Neel was required to pay the sum of $150 for the drilling and digging of post holes for fence on his farm in the year 1955, and sustained...
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