Keller v. General Motors Acceptance Corp.

• Decision Date: 28 June 1957
• Docket Number: No. 43162,43162
• Citation: 233 La. 320,96 So.2d 598
• Parties: J. Claude KELLER v. GENERAL MOTORS ACCEPTANCE CORPORATION.
• Court: Louisiana Supreme Court

Page 598

96 So.2d 598

233 La. 320

J. Claude KELLER v. GENERAL MOTORS ACCEPTANCE CORPORATION.

No. 43162.

Supreme Court of Louisiana.

June 28, 1957.

Sevier, Yerger & Sevier, Tallulah, and Hunt & Spencer, Monroe, for plaintiff-appellant.

Hudson, Potts & Bernstein, Monroe, for defendant-appellee.

HAMITER, Justice.

Herein, J. Claude Keller is seeking to recover from General Motors Acceptance Corporation (sometimes referred to in this opinion as GMAC) the sum of $2,463.39, plus 8% Per annum interest and 25% Attorney's fees. His demands were rejected by the district court and he is appealing.

The pertinent facts are not disputed. On May 20, 1954, plaintiff sold to one Cedell Dye (a resident of West Carroll Parish) a Pontiac automobile for a total consideration of $4,030.39, and he accepted the purchaser's promissory note of $2,763.39 which evidenced the unpaid portion of the sale price. This note, secured by a chattel mortgage and vendor's lien on the car, was payable in monthly installments, the last being for $2,463.39 and due December 20, 1954. On completion of the sale plaintiff endorsed the note and transferred it, together with his written personal guaranty for payment thereof, to GMAC.

All of the installments were paid by the debtor at their respective maturities except the last one of $2,463.39. When default as to it occurred GMAC called on plaintiff, as endorser and guarantor, for payment. Plaintiff paid the installment by a check dated January 7, 1955, to which was attached a written request that the note and the car's certificate of title be forwarded to him. Instead of complying with this request GMAC inadvertently marked the note paid (or cancelled) and mailed it, along with the title certificate, to the maker, Dye. The latter refused to surrender the instruments which he received, notwithstanding amicable demand therefor having been made on him.

On March 8, 1955, this plaintiff instituted suit against Dye, by ordinary process, for the purpose of foreclosing the mortgage and vendor's line on the car. No immediate seizure of the vehicle was therein demanded. Three days after service of the citation Dye sold the mortgaged property to an innocent purchaser in East Baton Rouge Parish, one Bidwell Pace, surrendering to him the erroneously cancelled note and the title certificate.

Later (April 30, 1955), this plaintiff and this defendant joined in an action in the East Baton Rouge Parish District Court in which they sought to enjoin the State Vehicle Commissioner from transferring the automobile's title to Pace, as well as from cancelling the mortgage effecting it, on the records of his office. The action was voluntarily dismissed when it appeared that the purchaser had been in good faith.

On October 10, 1955, the instant suit was instituted. Among the allegations contained in the petition are the following:

'That the negligent act of defendant herein, in not mailing the note and certificate of title to your petitioner as guarantor thereon, has caused petitioner to lose the security held under the chattel mortgage above referred to, thus causing petitioner to suffer a loss of the amount as paid to GMAC as heretofore set forth.

'That the promissory note above referred to provided that in the event of default of the debtor and in the event suit was necessary for collection thereof, that 25% On principal and interest would be due as attorney's fees. That the loss of this amount has been sustained by plaintiff through the negligent act of the defendant as set forth above.'

Plaintiff prays for judgment in the sum of $2,463.39, the...