Foster v. Masters Pontiac Co.

• Court: California Court of Appeals
• Citation: 322 P.2d 592,158 Cal.App.2d 481
• Decision Date: 18 March 1958
• 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.

Page 592

322 P.2d 592 158 Cal.App.2d 481 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. District Court of Appeal, Second District, Division 3, California. March 18, 1958.

[158 Cal.App.2d 483] Roger J. Pryor and Pauline Day Bakst, Compton, for appellant.

Sidney A. Cherniss, El Monte, for respondent Masters Pontiac Co., Inc.

VALLEE, Justice.

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

Page 593

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
                 ---------
                 Total 3778.14
                Deposit Received $ 10.00
                Used Car Allouwance $ 1395.00
                Less Pay Off Security
                 First Compton 485.00
                 ---------
                Net Allowance $ 910.00
                Cash on Delivery 213.35
                 --------
                Total Credit $ 1133.35
                 ---------
                Unpaid Balance of Cash
                 Price $ 2644.89
                Insurance--
                 Comprehensive Collision $ 78.00
                 ---------
                 $ 2722.89
                Total Time Payment
                 Balance $ 109.85
                Payable in CFC not to
                 reduce $ 91.22
                

[158 Cal.App.2d 484] 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)
                 ----------------------------
                 motor vehible sales tax
                Registration, Transfer and Title Fees 15.00 (b)
                 -------------
                 Lines (a) plus (b) $ 3778.14 (c)
                Less:
                 Down Payment: Cash $333.35
                 Agreed Net Value Trade-In 810.00 $ 1143.35 (d)
                 ------- -------------
                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. [158 Cal.App.2d 485] 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....