General Motors Acceptance Corporation v. Lund

• Decision Date: 12 June 1922
• Docket Number: 3785
• Citation: 208 P. 502,60 Utah 247
• Court: Utah Supreme Court
• Parties: GENERAL MOTORS ACCEPTANCE CORPORATION v. LUND

208 P. 502

60 Utah 247

GENERAL MOTORS ACCEPTANCE CORPORATION v. LUND

No. 3785

Supreme Court of Utah

June 12, 1922

Appeal from District Court, First District, Box Elder County; A. A Law, Judge.

Action by the General Motors Acceptance Corporation against L. L Lund. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

J. D Call, of Brigham City, for appellant.

Young & Davis, of Brigham City, for respondent.

GIDEON, J. CORFMAN, C. J., and WEBER, THURMAN, and FRICK, JJ., concur.

OPINION

GIDEON, J.

In this action respondent (plaintiff below) seeks to recover possession of a certain automobile. Ownership and right of possession are alleged. Judgment is asked for possession of the property or for its value if delivery cannot be had.

The answer admits the corporate existence of respondent, denies its ownership or right of possession of the property in question. The value is claimed to be different from that stated in the complaint. As a separate defense it is alleged that the respondent is a foreign corporation; that it has not complied with the provisions of the statutes of this state authorizing foreign corporations to do business in this state, and that it was at the time of commencing the action doing business in the state. As a counterclaim, appellant alleges ownership of the auto in question; that the respondent had wrongfully and wilfully taken the car from his possession and was still retaining the same. Damages for the wrongful taking and detention are sought.

At the close of the case the court directed a verdict in favor of respondent for possession of the automobile. Motion for new trial was denied. Appellant has assigned error in the exclusion of certain testimony, denying a nonsuit, and directing a verdict for respondent. Error is also assigned in overruling the demurrer and in the form of verdict submitted by the court.

The court's ruling in sustaining the objections to certain testimony is not prejudicial. The first question upon which error is claimed is: "Mr. McClure will you state that you have not taken as agent, these cars at your place of business for the General Motors Acceptance Corporation and now hold them in Tremonton?" The answer to that question in the affirmative or negative could not and would not have determined that the respondent was doing business in this state. The second question upon which error is assigned calls for a conclusion of the witness.

It appears that, on or about the 2d of June, 1920, the appellant purchased an automobile from the Tremonton Auto Sales Company, a partnership engaged in selling automobiles in the town of Tremonton, Box Elder county. A contract was entered into between the parties, at the time in which it was stipulated that the title to the property should remain in the seller until full payment of the purchase price. The contract is what is known as a "title retaining" note or contract. One of the provisions of the contract is:

"In the event of a default of the purchaser in complying with the terms of payment hereof, the seller may take immediate possession of said property, and for this purpose seller may enter upon the premises where said property may be and remove the same; thereupon all rights of the purchaser hereunder in said property and in the payments theretofore made shall terminate absolutely."

At the time of purchase, and as part of the same transaction, the appellant, as purchaser, executed a promissory note for the unpaid portion of the purchase price payable to the Tremonton Auto Sales Company at the office of the General Motors Acceptance Corporation in San Francisco, California. This contract and note was sold and transferred by the Tremonton Auto Sales Company to the respondent. In the assignment the auto sales company guaranteed the payment of the principal and interest of the note and authorized the respondent to do "every act and thing necessary to collect and discharge the same." It conclusively appears that the third or last installment of the purchase price had not been paid; that demand for payment or return of the auto had been made before the commencement of this action; that such demand had been refused and the balance had not been paid.

It is argued that the respondent cannot maintain this action as it appeared that it was doing business in the state, without having complied with the law permitting foreign...