Dockery v. Greenfield, 9716

• Decision Date: 10 December 1957
• Docket Number: No. 9716,9716
• Citation: 136 A.2d 682,86 R.I. 464
• Parties: Elmer DOCKERY v. Abraham GREENFIELD. Ex.
• Court: Rhode Island Supreme Court

Page 682

136 A.2d 682

86 R.I. 464

Elmer DOCKERY v. Abraham GREENFIELD.

Ex. No. 9716.

Supreme Court of Rhode Island.

Dec. 10, 1957.

Thomas H. Needham, Archie Smith, Providence, for plaintiff.

William I. Matzner, Mortimer G. Cummings, Providence, for defendant.

CONDON, Justice.

This is an action of assumpsit which was tried before a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff in the sum of $1,500 and costs. The case is here on the defendant's bill of exceptions containing an exception to such decision and certain other exceptions to rulings during the trial. However, since only the exception to the decision has been briefed and argued, the other exceptions are deemed to be waived.

The controversy between the parties arose out of an anomalous transaction in which they agreed to purchase in the name of defendant as conditional vendee for the benefit of plaintiff a 1951 Cadillac convertible coupe on a conditional sales contract from Trinity Auto Sales, Inc., of Providence. The evidence shows that plaintiff saw the Cadillac on the conditional vendor's used car lot and wanted to buy it on time, but felt he could not get it for the reason, as he testified, that he was a stranger in Providence without any credit standing. He thereupon made known his predicament to defendant at whose hotel he was a guest. At plaintiff's request defendant consented to enter into the required conditional sales contract on behalf of plaintiff, provided he would furnish the full down payment and punctually provide defendant with the money to pay each monthly installment as it fell due. The plaintiff agreed and accordingly on or about November 6, 1952, he made the down payment, defendant signed all the necessary papers, and the conditional vendor gave him possession of the car. Thereafter plaintiff drove it to defendant's hotel parking lot.

There is a conflict in the testimony as to whether plaintiff was to have any right to custody or use of the car. The plaintiff testified that he was to have such right as long as he provided defendant with the money to meet each monthly payment and that he had exercised such right without question until Deceber 15, 1952. Upon returning from Pinehurst, North Carolina, where he had driven the car to attend the funeral of a relative, he was arrested at the door of defendant's hotel on a complaint made by defendant charging him with larceny of the car. At that time defendant claimed ownership of the car and did not acknowledge any right in plaintiff to its custody, although he, plaintiff, was paying for it. In these circumstances plaintiff retained counsel, and as a result of negotiations the criminal complaint was discontinued on payment of costs, and on January 8, 1953, the written memorandum agreement, upon which the instant action was brought, was entered into between the parties.

That memorandum agreement was apparently intended to clarify and make more certain the terms of the oral agreement. It expressly provided that plaintiff would purchase and defendant would sell the Cadillac for the balance of the notes then due plus an additional $300 payable on the signing of the memorandum and $150 on or before the fifteenth day of each month commencing January 15, 1953. The agreement further provided that defendant was to retain title and possession until plaintiff paid the purchase price in full. The plaintiff fully complied therewith until on or about September 1, 1953, when he learned that defendant had transferred the car to a third party.

The defendant testified that under the original oral agreement plaintiff had no right to the custody or use of the car; that he, defendant, was the owner; and that he had charged plaintiff with stealing the car because he had gotten possession by a ruse and without his, defendant's, permission. The memorandum agreement definitively established two things: First, that defendant was entitled to possession of the car; and second, that plaintiff had a right to acquire title provided he faithfully furnished defendant with the money to meet the monthly payments under the conditional sales contract between defendant and the conditional vendor.

Notwithstanding plaintiff's full compliance with the terms of the memorandum agreement by...