Mossler Acceptance Co. v. Perlman

• Decision Date: 07 July 1950
• Citation: 47 So.2d 296
• Parties: MOSSLER ACCEPTANCE CO. et al. v. PERLMAN.
• Court: Florida Supreme Court

Page 296

47 So.2d 296

MOSSLER ACCEPTANCE CO. et al. v. PERLMAN.

Supreme Court of Florida, Division B.

July 7, 1950.

Rehearing Denied July 27, 1950.

Roberts, Holland & Strickland and Sydney L. Weintraub, Miami, for appellants.

Saunders, Buckley & O'Connell, Fort Lauderdale, for appellee.

CHAPMAN, Justice.

The record in this case discloses the following factual situation: On December 18, 1947, Everett Perlman represented to Lillian Brenner, doing business as Esquire Motors; that he was twenty-one years of age--having been born on February 3, 1926--and desired to purchase of her one 1947 second-hand Chrysler Town and Country automobile at the price of $3,895.00. Lillian Brenner on the above date sold to Everett Perlman the Chrysler automobile for the sum of $3,895.00 and accepted as a partial payment on the agreed purchase price one 1946 Dodge automobile then owned by Everett Perlman, in the sum of $1,800.00, leaving a balance due and owing on the Chrysler automobile in the sum of $2,095.00. Everett Perlman executed a contract of purchase of the Chrysler automobile payable to Lillian Brenner in the sum of $2,095.00, plus interest and finance charges in the sum of $743.00, which made the contract of purchase of the Chrysler total the sum of $2,838.00. It was payable at the rate of $118.25 per month.

The 1946 Dodge automobile traded to Lillian Brenner by Everett Perlman, as a down payment on the Chrysler automobile, was by her on December 24, 1947, sold for the sum of $2,145.00, after costs of repairs in the total sum of $154.20. Shortly after December 18, 1947, Lillian Brenner, the dealer, transferred and assigned to the Mossler Acceptance Company the conditional sales contract and the indebtedness secured by the conditional sales contract as signed, executed and delivered by Everett Perlman. On or about February 10, 1948, Everett Perlman paid to the Mossler Acceptance Company the first and only monthly installment payment in the amount of $118.00 on his conditional sales contract. On March 17, 1948, the Mossler Acceptance Company, after Perlman defaulted in payment of the installments of the conditional sales contract, instituted replevin and repossessed the Chrysler automobile.

On September 27, 1948, Everett Perlman, by his mother and next friend, Rebecca Perlman, filed an amended bill of complaint in the Circuit Court of Dade County, Florida, against Mossler Acceptance Company, Lillian Brenner, Esquire Motors and others, and attached thereto was a birth certificate of Everett Perlman evidencing his birth as February 3, 1928; Everett Perlman, apparently, was a minor on December 18, 1947. It was further alleged that the purchase of the Chrysler Automobile by Everett Perlman and the execution and delivery of the conditional sales contract was not when delivered, nor since said date, a necessity for the minor, Everett Perlman. The amended bill prayed for (1) a rescission of the conditional sales contract; (2) a surrender of the contract and a cancellation of the minor's signature; (3) a refund of the $2,145.00, being the value of the Dodge automobile; (4) a return of the installment of $118.00 previously paid by the minor; and (5) for general relief.

The defendants answered the amended bill of complaint. Paragraph ten of the answer of Lillian Brenner and Esquire Motors was stricken on the grounds because (1) it presented irrelevant and immaterial issues; (2) the matters of fact and thing set out in paragraph ten of the answer is not a defense to the equity suit praying for a cancellation of the minor's contract; and (3) the facts set out in paragraph ten of the answer tend to prejudice the legal rights of the minor plaintiff. The trial court struck paragraph ten of the answer and on petition for certiorari this Court quashed the order, thereby sustaining the legal sufficiency of paragraph ten of the answer. See Brenner v. Perlman, 40 So.2d 901, 902.

Paragraph 10 of the answer sustained by this Court is viz.: 'Further answering Plaintiff's First Amended Bill of Complaint this Defendant says that the Plaintiff induced her by fraudulent misrepresentation to enter into the contract which he now seeks to have this Court set aside in that to induce her to sell him the automobile he stated to Defendant that he...