Dominick v. Rea

• Decision Date: 10 April 1924
• Docket Number: No. 63.,63.
• Citation: 198 N.W. 184,226 Mich. 594
• Parties: DOMINICK v. REA et al.
• Court: Michigan Supreme Court

226 Mich. 594

198 N.W. 184

DOMINICK

v.REA et al.

No. 63.

Supreme Court of Michigan.

April 10, 1924.

Error to Circuit Court, Wayne County; Leland W. Carr, Judge.

Action by Edward Dominick against William C. Rea and another. Judgment for defendants, and plaintiff brings error. Reversed, and new trial ordered.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Charles C. Stewart, of Detroit, for appellant.

Campbell, Bulkley & Ledyard, of Detroit (Harold R. Smith, of Detroit, of counsel), for appellees.

MOORE, J.

It is the claim of the plaintiff that he bought an automobile in April, 1920, for the sum of $1,300, and that he paid $650 down in cash and was to pay the balance in 10 equal monthly installments. He says the automobile was then delivered to him. Some six weeks later the plaintiff signed a paper or papers. We quote his testimony on cross-examination:

‘The complete price that I was to pay him was $1,300 at the time I bought it. That remaining $650 I was to pay in notes. I think I signed 10 notes. It might have been one note in 10 installments. At this time I can't recall. I signed notes, but no contract. I had possession of the machine long, long before this, any notes was drawn up. I understood this $650 was to be paid in ten payments.

‘Q. You understood this clearly, that there was to be $650 yet to be paid, didn't you? A. Why, the $650 was to be divided up.

‘Q. You understood that was to be divided into 10 notes? A. Yes, sir. * * *

‘Q. I will show you defendants' Exhibit 1, and ask you if you recognize that paper. A. I don't recognize the paper so much; it is a good deal like my handwriting.

‘The Court: What is that? A. I say I don't recognize the papers so much, but the writing looks familiar with mine.

‘The Court: The writing is yours? A. My name is there, yes.

‘The Court: You signed the paper? A. I think I did sign that one.

‘The Court: You recognize that as your signature, do you? A. Yes, sir; I think so. It looks a great deal like my handwriting.

‘Q. Look at the bottom paper. Did you sign that paper there (indicating)? A. I don't know; I think I did; it looks like-a good deal like my writing.

‘Q. Now on the reverse side, did you sign that on the reverse (indicating)? A. That don't look like my writing.

‘Q. That then is not your signature, you want to say? A. It don't look like my handwriting; I never make a ‘D’ that way.

‘Q. Can you read that paper? A. No, sir.

‘Mr. Smith: I will offer that paper (Defendants' Exhibit 1) in evidence.'

Defendants' Exhibit 1, before referred to, was a written contract, nearly all of which was printed in very small type. It is so long it takes up nine printed pages of the record. We quote from the brief of appellant's counsel:

‘So far as is essential to review, the agreement provides for retention of title by the seller until the price is fully paid; covers all conditions and agreements between the parties; gives the seller the right, without demand or notice, to take possession of the car upon any default in the payments by the buyer; and the buyer waives any right of action growing out of repossession or retention of the car. Upon any default in payment the entire balance is to become due and all amounts due are to bear interest at the highest legal rate. The buyer is given the right to retain all payments made as liquidated damages for nonfulfillment and is given the right to a deficiency. Time is of the essence and waiver of any default is not to operate as a waiver of subsequent defaults.

‘Attached to this agreement is a note made by the appellant to the order of Commercial Acceptance Trust and providing for the payment of $747.50 in installments in amounts and periods corresponding with the agreement.

‘On the reverse the agreement is assigned by Stearnes Detroit Motor Sales to Commercial Acceptance Trust.'

The so-called note was attached to the agreement and is payable at the office of Commercial Acceptance Trust Company, 208 La Salle street, Chicago, Ill. It authorizes any attorney to appear for the maker in any court and confess judgment with costs, collection expenses, and attorney fees, and to release all waiver and waive all right of appeal, and many other provisions.

The defendant did not swear any witnesses, but introduced Exhibit 1 in evidence.

The trial judge was of the opinion that as plaintiff had not made the payments called for in the writings, and had not tendered as much money as the writing required, he should direct a verdict in favor of the defendants, and did so. The case is brought into this court by writ of error.

The plaintiff testified that he never signed any papers knowingly to the effect that he would make payments in Chicago, or outside the state, and that he never received any contract.

Counsel stipulated as follows:

‘It is hereby conceded and admitted by the attorneys for the defendants that at the time of the taking of the automobile by the defendants from the custody and possession of the plaintiff, the Commercial Acceptance Trust had not obtained authority from the secretary of state of Michigan to do business in the said state of Michigan as a foreign corporation under sections 9063 and 9071, Compiled Laws of 1915, and that no authority has since then been so obtained and that this admission is made to obviate the necessity, if any, of obtaining and procuring such evidence of the failure to procure such...