Foster v. Masters Pontiac Co.
| Decision Date | 18 March 1958 |
| Citation | 322 P.2d 592,158 Cal.App.2d 481 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Roy V. FOSTER, Plaintiff and Appellant, v. MASTERS PONTIAC COMPANY, Inc., a California corporation, California Funding Corporation, a California corporation, Defendants and Respondents. Civ. 22467. |
Roger J. Pryor and Pauline Day Bakst, Compton, for appellant.
Sidney A. Cherniss, El Monte, for respondent Masters Pontiac Co., Inc.
Appeal from a judgment entered on an order sustaining a general and special demurrer to the third amended complaint, referred to as the complaint, without leave to amend.
The complaint alleges:
1. On November 24, 1953 plaintiff, as buyer, and defendant Masters Pontiac Company, called defendant, as seller, entered into an oral agreement whereby plaintiff agreed to buy a 1953 Pontiac for $3,653.53 and defendant agreed to take plaintiff's 1951 Kaiser in trade for a net allowance of $910; plaintiff agreed to pay the usual sales tax and license and transfer fees; plaintiff agreed to pay $233.35 cash and pay defendant $91.22 a month for six months, and it was agreed that at that time plaintiff could refinance at a lower figure. 2. At the time one Bruning, as agent of defendant, acting within the scope of his employment, represented to plaintiff that he would take plaintiff's 1951 Kaiser, pay off the encumbrance thereon, and trade his 1949 Hudson in its place, and that plaintiff would nevertheless receive the same net allowance of $910. 3. Thereupon the parties executed a conditional sales contract in writing titled 'Car Order' for the sale of the Pontiac under which defendant delivered the Pontiac to plaintiff and plaintiff delivered the Kaiser to defendant. The 'Car Order' is made part of the complaint. It is addressed to defendant; is dated November 24, 1953; is an order for a 1953 Pontiac with motor number; and states:
Price of car $ 3653.53
Sales Tax 109.61
License and Transfer 15.00
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Total 3778.14
Deposit Received $ 10.00
Used Car Allouwance $ 1395.00
Less Pay Off Security
First Compton 485.00
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Net Allowance $ 910.00
Cash on Delivery 213.35
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Total Credit $ 1133.35
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Unpaid Balance of Cash
Price $ 2644.89
Insurance--
Comprehensive Collision $ 78.00
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$ 2722.89
Total Time Payment
Balance $ 109.85
Payable in CFC not to
reduce $ 91.22
4. Concurrently with the signing of the 'Car Order,' defendant required plaintiff to sign another form titled 'Contract of Conditional Sale' which was a printed from with none of the blanks filled in; defendant represented to plaintiff that it would be filled in to conform to the 'Car Order.' 5. About 10 days later plaintiff received a copy of the contract of conditional sale with words and figures typed in the blank spaces; the typed words and figures did not conform to the 'Car Order.' A copy of the contract of conditional sale is made a part of the complaint. The figures and promise inserted in it were:
Cash Selling Price $3653.53 $109.61 $ 3763.14 (a)
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motor vehible sales tax
Registration, Transfer and Title Fees 15.00 (b)
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Lines (a) plus (b) $ 3778.14 (c)
Less
Down Payment: Cash $333.35
Agreed Net Value Trade-In 810.00 $ 1143.35 (d)
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Amount Unpaid on Cash
Price (c) less (d) $ 2634.79 (e)
Insurance
Comprehensive 12 Mos; Prem. $ 22.00
$50 Deductible
Collision 12 Mos; Prem. 54.00
Towing and Road
Service 12 Mos; Prem. 2.00
Total Insurance Premiums $ 78.00 (f)
Unpaid Balance, (e) plus (f) $ 2712.79 (g)
Plus Time Price Differential $ 570.71(h)
Total Contract Balance Due Seller from
Purchaser $ 3283.50 (i)
'which purchaser agrees to pay in instalments of $109.45, on the 10th day of each succeeding month for a period of 30 months, beginning 1-10-54.' The contract sent plaintiff was not signed by defendant. It shows the sale of a new Pontiac. 6. Concurrently defendant required plaintiff to sign a promissory note in terms and conditions unknown to plaintiff and he never has received a copy of it. 7. The 'Car Order' does not contain all of the agreements between the parties and is in violation of section 2982(a) of the Civil Code in that: a. it did not specify the correct trade-in; b. it did not specify the kind of insurance, the premiums for fire and theft, comprehensive, or collision insurance coverage, nor the term of insurance charged to plaintiff; c. it did not specify the amount of the timeprice differential; d. it did not specify the contract balance owed by the buyer to the seller; e. it did not specify the number of installments required to pay the contract balance, the amount of each installment, and the day of payment for each installment; f. it specified $15.00 as and for 'license and transfer,' whereas that fee was not payable by the seller at the time of the contract and should not have been charged to plaintiff. 8. The contract of conditional sale does not contain all or the true agreement and is in violation of section 2982(a) of the Civil Code in that a copy was not delivered at the time of its execution. 9. Pursuant to the 'Car Order,' plaintiff has paid to defendant a down payment of $213.35, has traded in to defendant the 1949 Hudson of the agreed value of $910, and has paid to defendant $91.22 a month for the months of January through June, 1954, a total of $547.32. 10. On June 21, 1954 plaintiff returned the Pontiac to defendant on the ground the contract is unenforceable and it is now in its possession. 11. On June 23, 1954 defendant informed plaintiff the Pontiac had been placed in storage for plaintiff's protection to its damage in the sum of $2.00 a day.
The complaint alleges further: An actual controversy had arisen between plaintiff and defendant as to their respective rights and duties under the 'Car Order' and the contract of conditional sale and as to the validity and enforceability of them in that plaintiff contends: they are invalid and unenforceable and the 'Car Order' is in violation of Civil Code, section 2982(a); plaintiff is under no obligation to make any further payment on any unpaid installments of the contract balance and is entitled to recover from defendant the cash he has paid and the agreed value of the car he traded in; defendant did not pay off the Kaiser as agreed; the Pontiac was a used car when delivered to plaintiff, and a license had previously been issued for it; plaintiff's interest and liability ceased on June 21, 1954. Defendant contends it is entitled to the balance due on the contract of conditional sale, and on default to repossess the Pontiac, sell it, and collect any deficiency from plaintiff; plaintiff wrongfully returned the Pontiac and defendant is entitled to charge him storage of $2 a day while it is in defendant's possession.
A second count is for money had and received. The prayer is for declaratory relief and for money under the second count.
As stated, the demurrer was general and special. The record does not disclose the ground on which the court sustained the demurrer without leave, a practice we have had occasion to severely criticize. See James v. Herbert, 149 Cal.App.2d 741, 309 P.2d 91.
The argument here centers entirely around the question whether the complaint states facts sufficient to constitute a cause of action for declaratory relief. We have concluded it does.
The rule that a complaint is to be liberally construed is particularly applicable to one for declaratory relief. 15 Cal.Jur.2d 159, § 32. It is elementary that questions relating to the formation of a contract, its validity, its construction and effect, excuses for nonperformance, and termination are proper subjects for declaratory relief. 15 Cal.Jur.2d 225, § 71, Section 1061 of the Code of Civil Procedure states the court may refuse to exercise the power to grant declaratory relief in any case where its declaration is not necessary or proper at the time under all the circumstances. This discretion is not unlimited. See Lawrence Barker, Inc., v. Briggs, 39 Cal.2d 654, 663, 248 P.2d 897. It is a legal or judicial discretion subject to appellate review, and declaratory relief must be granted when the facts justifying that course are sufficiently alleged. Kessloff v. Pearson, 37 Cal.2d 609, 613, 233 P.2d 899.
'[S]ection 1061 of the Code of Civil Procedure, which allows the trial court...
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