Green v. DeVoe Sales, Inc.

• Decision Date: 12 December 1970
• Docket Number: No. 45850,45850
• Citation: 206 Kan. 238,477 P.2d 944
• Parties: Gary L. GREEN and Dawn C. Green, Appellants and Cross-Appellees, v. DeVOE SALES, INC. and Devoe Treadwell, Appellees, and Cross-Appellants.
• Court: Kansas Supreme Court

Page 944

477 P.2d 944

206 Kan. 238

Gary L. GREEN and Dawn C. Green, Appellants and Cross-Appellees, v. DeVOE SALES, INC. and Devoe Treadwell, Appellees, and Cross-Appellants.

No. 45850.

Supreme Court of Kansas.

Dec. 12, 1970.

Syllabus by the Court

1. The provisions of the Registration of Motor Vehicles Act, pertaining to the sale of a vehicle required to be registered under the Act, mean exactly what they say. Such provisions are to be literally interpreted and strictly enforced and failure to comply therewith renders the sale of a vehicle required to be registered under the Act fraudulent and void.

2. Rules and regulations adopted by an administrative agency and filed with the Revisor of Statutes pursuant to K.S.A. 77- 405 (now K.S.A. 77-425) have the force and effect of laws.

3. Violation of the provisions of K.S.A. 8-135(c)(6), (now 1970 Supp.), of the Registration of Motor Vehicles Act, creates a cause of action based on fraud.

4. Generally officers of a corporation are not individually liable upon contracts wherein the corporate name is signed and is followed by the signature of an officer of the corporation to which are added the words denoting his representative capacity, in the absence of showing participation by such officer in a capacity other than representative.

Fred R. Vieux, Augusta, was on the brief for appellants and cross-appellees.

Cecil E. Merkel and James L. Pinkerton, of Hayes & Merkel, Wichita, were on the brief for appellees and cross-appellants.

KAUL, Justice.

This is an action for damages instituted by plaintiffs-appellants as purchasers of a new mobile home against defendants-appellees who operated a mobile home dealership in Wichita. Apparently, defendant DeVoe Treadwell owned and operated the defendant DeVoe Sales, Inc. For convenience appellants will be referred to as Greens or plaintiffs and appellees as DeVoe or defendants.

After a trial to the court judgment was entered for plaintiffs in the amount of $250.45. Plaintiffs filed motions to set aside findings or in the alternative to grant a new trial. The motions were overruled. Thereafter plaintiffs appealed and defendants cross-appealed.

We are first confronted with defendants' motion to dismiss for failure on the part of plaintiffs to comply with rules of this court governing the preparation of the record on appeal. When filed, the motion was denied with leave granted to defendants to renew when the case was heard on the merits. In particular, defendants point out that plaintiffs failed to comply with the requirements of Supreme Court Rule No. 6(d) (203 Kan. XXIV, XXV) as to the manner and form in which points on appeal must be stated. Defendants further show that plaintiffs' brief is not reproduced in content and form as directed by Rule No. 8(b) (203 Kan. XXVIII.)

An examination of the record and plaintiffs' brief reveals that defendants have good cause to complain. In this connection we direct attention to what this court has said concerning the responsibility, particularly of appellants, in preparing the record and reproducing briefs on appeal. (See Beams v. Werth, 200 Kan. 532, 438 P.2d 957; State, ex rel. Elting v. Doerschlag, 197 Kan. 302, 416 P.2d 257; Scrinopskie v. Arthur Murray, Inc., 195 Kan. 278, 403 P.2d 1001; and Bolyard v. Zimbelman, 195 Kan. 130, 402 P.2d 813.)

Failure to fully comply with the rules pertaining to the form and content of the record and brief adds to the burden of this court and often unfairly puts opposing counsel in a disadvantageous position. In this case, our task is further complicated by the lack of any opportunity to be enlightened on oral argument since the appeal was submitted by agreement of the parties. Even though the manner in which plaintiffs have presented this appeal leaves much to be desired; in the interest of justice we have undertaken to dispose of the issues on their merits.

As a basis for their action, plaintiffs allege the sale of the new mobile home was fraudulent and void under K.S.A. 8-135 (now 1970 Supp.). Plaintiffs also sued for punitive damages alleging defendants failed to purchase a policy of insurance on the mobile home, as required by the contract of sale. Defendants cross-claimed for damages based on a deficiency on the resale of the mobile home after it was repossessed by defendants.

In the course of the transactions, resulting in the purchase of the mobile home, two instruments were drawn up by DeVoe and signed by the Greens. The first was entitled 'Customer's Purchase Agreement for Mobilehome, Travel-Trailer or Vacation Unit.' It set out what appears to be the terms of the sale and trade-in allowance. The purchase agreement was not signed by anyone for DeVoe and carried the notation 'Deal Binding if Customer Decides to Buy.' At the trial the customer's purchase agreement was introduced by Greens and marked plaintiffs' Exhibit 1.

The second instrument referred to was signed by both parties. It is a document entitled 'Retail Installment Contract,' the words 'Purchase Money Chattel Mortgage' appear in parenthesis immediately underneath the heading.

The contract described the mobile home and listed the cash sale price $4,051.80, the down payment $685.45, insurance $304.00, finance charge $2,207.01, and a total time payment balance of $6,878.76. The contract further provided for 84 monthly installments in the amount of $81.89 each. The contract was offered into evidence by DeVoe and marked defendants' Exhibit 1.

DeVoe assigned the contract with recourse to the Rose Hill State Bank.

Apparently, plaintiffs lived in the mobile home until sometime in March 1968, when payments became two months in default. The bank reassigned the contract to DeVoe who then repossessed the mobile home. The evidence shows that at the time of repossession there was a balance due of $3,687.92 after discounting future interest payments. The mobile home was sold for $3,706.61 with expenses of the sale amounting to $767.56 resulting in net receipts of $2,939.05 and a deficiency of $748.87 upon which DeVoe based its counterclaim.

Plaintiffs' evidence consisted of the testimony of Mr. and Mrs. Green. Defendants offered no testimony, but relied upon the direct and cross-examination of plaintiffs' witnesses and the contract of sale as evidence to support their position. Both parties relied to some extent on interrgatories submitted by plaintiffs to defendants and stipulations entered into at the pretrial conference.

At the conclusion of the trial the court announced its findings as follows:

'THE COURT: Well, in addition to the stipulation I am going to find that Defendants' Exhibit 1 is a bill of sale that meets the requirements of the State of Kansas. Included within that bill of sale and Plaintiffs' Exhibit 1, there is an agreement on the part of the defendants, DeVoe Sales, Inc., to purchase insurance for and on behalf of the plaintiffs, and that was included in the payments. This was not done by the defendant, DeVoe Sales, Inc., and amounts to a breach of contract on the part of that corporation. By that breach they are not entitled to any damages for the alleged deficiency. In like manner the plaintiffs did reside in the mobile home and did receive value from residing in the home itself in regard to the payments. I am going to award judgment in favor of the plaintiffs. I think it's rather serious. I don't think there is any showing of intentional fraud that would allow punitive damages. On the basis of the quantum error of this case, I am going to allow judgment in favor of the plaintiffs and against the defendants for the actual amount of money that was paid down, which was $250.45 and the costs of the action. MR. VIEUX: We aren't recovering the installment payments? THE COURT: No, sir. As far as I am concerned that would be unjust. They did reside in the trailer. I am going to give them judgment for $250.'

The underlying question on appeal is whether the contract of sale, identified as defendants' Exhibit 1, amounts to a bill of sale within the requirements of K.S.A. 8-135(c)(3), (now 1970 Supp.), of the Registration of Motor Vehicles Act, which reads:

'Dealers shall execute, upon delivery to the purchaser of every vehicle, a bill of sale stating the lien or encumbrances thereon, in accordance with form prescribed by the commission for all vehicles sold by them. Upon the presentation to the commission or its authorized agents of a bill of sale executed in the form prescribed, by a manufacturer or dealer for a new vehicle, sold in this state, a certificate of title shall be issued in accordance with the provisions of this act: Provided, however, That simultaneously with the application for certificate of title, there is also an application for registration, and in no other cases.'

Greens contend the trial court erred in finding the contract (defendants' Exhibit 1) to be a bill of sale and, further emphatically point out that the trial court did not find that it had been delivered to them even though it might have amounted to a bill of sale. Greens further contend that the undisputed evidence shows that defendants failed to purchase insurance on the trailer, as required by the contract, and that as a matter of law they are entitled to judgment for compensatory damages for the full amount of their trade-in down payment and installment payments totaling $1,728.13 and in addition a judgment for punitive damages in the amount of $10,000.00.

Defendants concede the trial court made no express finding that the bill of sale was delivered but contend that such finding is implicit in the decision. Defendants further argue that even though the sale is void, nevertheless they are entitled to an offset against the amount paid by Greens by reason of the benefit to Greens from living in the mobile home for a period of sixteen months.

We turn to the question whether the sale herein was fraudulent and void under the provisions of 8-135(c)(3), supra, by reason of...