Motor Contract Co. v. Van Der Volgen, 23163.
Decision Date | 04 May 1931 |
Docket Number | 23163. |
Citation | 298 P. 705,162 Wash. 449 |
Parties | MOTOR CONTRACT CO. v. VAN DER VOLGEN. |
Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, King County; J. T. Ronald, Judge.
Action by Motor Contract Company against W. M. Van Der Volgen. From an adverse judgment, defendant appeals.
Reversed with directions.
Warren Hardy, of Seattle, for appellant.
Henry Clay Agnew, of Seattle, for respondent.
Alleging the defendant refused to pay two overdue installments on an automobile, and that the plaintiff elected to declare all amounts paid thereon forfeited, the plaintiff finance company commenced this action to obtain possession of the automobile and to recover the costs of the action and the sum of $100 as a reasonable attorney's fee. It appears from the allegations of the complaint that the plaintiff, a finance company doing business in the state of Washington purchased for value from the vendor the conditional sales contract on which the Guaranteed Used Car Company sold an automobile to the defendant; that the contract is in the usual form, except for two additional provisions therein reading as follows:
The defendant admitted the contract, that it was purchased for value by the plaintiff, and that he failed to make the payments due on the automobile, but set up two counterclaims. As a first counterclaim the defendant alleged that the agreed purchase price of the automobile was $300, 'and that the sum of $120.00 was added to said contract as interest, and constituted usury to said amount.' As a second counterclaim the defendant alleged that the vendor misrepresented that the car was in a first-class mechanical condition; that the condition of the car was such as to necessitate repairs costing the defendant $200.
Plaintiff's demurrer to the counterclaim was sustained, and, the defendant refusing to plead further, the plaintiff was adjudged entitled to possession of the automobile, and to recover costs and an attorney's fee of $100. From that judgment the defendant has appealed.
Appellant contends that the agreement contravenes public policy, as it allows a vendor to contract for the payment of usury or employ fraudulent practices, and to sell his illegal contract free of these defenses; that, although admitting in this replevin action $100 is a reasonable attorney's fee, the court had no right to impose any fee; that the respondent, having canceled the contract and forfeited all of the rights of the appellant thereunder, is precluded, as the contract no longer exists, from resorting to any provision of that contract to derive any benefit therefrom.
In the absence of the above-quoted provisions, the contract in question would not be a negotiable instrument, and under the provisions of section 266, Rem. Comp. Stat., reading as follows, the appellant could have set off his demands against the respondent, and the demurrer to his counterclaims should not have been sustained:
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