In re Bibbey

• Decision Date: 22 September 1925
• Citation: 9 F.2d 944
• Parties: In re BIBBEY.
• Court: U.S. District Court — District of Minnesota

9 F.2d 944 (1925)

In re BIBBEY.

District Court, D. Minnesota, Fourth Division.

September 22, 1925.

Harold W. Cox, of Minneapolis, Minn., for trustee.

Harold E. Paulson and G. A. Will, both of Minneapolis, Minn., for petitioner.

MOLYNEAUX, District Judge.

It appears from the evidence: That on December 11, 1924, G. L. Bibbey purchased from the Minnesota Case Motor Car Company, Incorporated, one automobile suburban coupe, serial No. 39796, motor 8R3713, state license No. 35099B, for which he traded in an automobile at the price of $800 and an assigned note owned by him, valued at $250, and for the balance of the purchase price made, executed, and delivered his promissory note, by the terms of which he agreed to pay to the Minnesota Case Motor Car Company, Incorporated, $1,102.50, in 18 installments of $61.25 each; the first being payable on January 3, 1925, and each month thereafter, until the whole of the same was paid. At the same time, and dated the same date, the said G. L. Bibbey and the Minnesota Case Motor Car Company entered into a conditional sales contract, which was duly filed in the office of the city clerk of the city of Minneapolis, Hennepin county, Minn., on December 13, 1925. That some of the conditions of said conditional sales contract are as follows:

"Minnesota Case Motor Car Co., Inc., the seller, hereby sells, and G. L. Bibbey, the buyer, hereby agrees to buy, subject to the terms and conditions hereinafter set forth, the following described property, together with all equipment belonging thereto, delivery and acceptance of which is hereby acknowledged by the buyer (describing said automobile), and pay therefor in gold coin of the United States the total purchase price of $1,950 (which sum, if the property be an automobile or motor truck, includes the premium for one year for fire and theft insurance), as follows: $1,050 upon the signing of this contract, and the balance at the Northwestern National Bank (main office), in Minneapolis, Minnesota, in equal monthly installments as follows:

$61.25 due one month after date 61.25 due two months after date 61.25 due three months after date 61.25 due four months after date 61.25 due five months after date 61.25 due six months after date. 61.25 due seven months after date. 61.25 due eight months after date. 61.25 due nine months after date. 61.25 due ten months after date. 61.25 due eleven months after date. 61.25 due twelve months after date.

Also $61.25 due 13, 14, 15, 16, 17, and 18 months after date."

These notes were made payable according to the terms of said promissory note heretofore referred to, and which is referred to in said contract and made a part thereof. It is plainly apparent that the insertion of $1,950 in said contract was a mistake, made by the person who drew the contract, for when it said that $1,950 is to be paid, $1,050 down, acknowledgment of which payment was made, and 18 payments, of $61.25 each, the arithmetic is wrong, for 18 payments of $61.25 amount to $1,102.50, which, added to the $1,050 paid, makes more than $1,950, to wit, $2,152.50, which plainly demonstrates that the person who drew the contract made a mistake.

It is also apparent and without question from the evidence, that the cash price for this car was $1,950, but that Bibbey did not buy it for cash, but on time payments, and it is equally apparent from the testimony that the time payment was not $1,950, but was the down payment of $1,050, made by delivering a car at $800 and the assigning of a note of $250, and the agreement to pay 18 installments, of $61.25 each. All of this is uncontradicted, and is testified to by both sides.

The written contract and the oral evidence in this case are to the effect that Bibbey was to pay for this car on time, as hereinbefore stated, and that the note and sales contract were given, not for the loan of money or the forbearance of a debt, but were given to secure the purchase of the automobile sold by the Case Motor Car Company to G. L. Bibbey. If the Case Motor Car Company had kept this contract and note, and compelled Bibbey to pay, as he agreed to pay, this question probably would not have come up; but the Case Motor Car Company sold and assigned this contract to the Otas Finance Company for the sum of $1,950, which was the cash price of the car, and it is alleged and claimed that this was a scheme by which the Minnesota Case Motor Car Company loaned to Bibbey $1,950 at a usurious rate, exacting therefor the sum of $202.50, and 7 per cent. per annum interest; but the fact appears plain that this was not a loan of money, but was a sale of a car, and it is quite apparent that the Minnesota Case Motor Car Company contemplated discounting and selling the sales contract and note to the Otas Finance Company, as it did do; but this does not alter...