Rocky Mountain Export Co. v. Colquitt

• Decision Date: 24 March 1960
• Citation: 179 Cal.App.2d 204,3 Cal.Rptr. 512
• Court: California Court of Appeals Court of Appeals
• Parties: ROCKY MOUNTAIN EXPORT CO., Inc., a corporation, Plaintiff and Appellant, v. W. H. COLQUITT, Defendant and Respondent. Civ. 6050.

Page 512

3 Cal.Rptr. 512

179 Cal.App.2d 204

ROCKY MOUNTAIN EXPORT CO., Inc., a corporation, Plaintiff and Appellant, v. W. H. COLQUITT, Defendant and Respondent.

Civ. 6050.

District Court of Appeal, Fourth District, California.

March 24, 1960.

Alfred G. Mortimore, Shafter, for appellant.

Maas & Nairn and John M. Nairn, Bakersfield, for respondent.

COUGHLIN, Justice.

The plaintiff sold and delivered a portable drilling rig to defendant and in payment received a promissory note secured by a chattel mortgage on the rig.

Eventually plaintiff took possession of the drilling rig; transported it to Denver, Colorado; sold it; applied the proceeds to the payment of the promissory note, after deducting expenses for transportation, upkeep and sale; and brought this action to recover the unpaid balance due under the note.

Plaintiff's complaint alleged a cause of action for recovery on the promissory note but made no mention of the chattel mortgage. Defendant's answer denied that any amount was unpaid under the note; set forth several separate defenses; but made no mention of the chattel mortgage.

Preliminary to a pretrial conference both parties submitted pretrial statements in which the execution of the note and the chattel mortgage were admitted. These pretrial statements set forth the issues as raised by the complaint and answer. The pretrial order did not specifically define the issues except to state that the parties 'have filed statements in amplification of the pleading which are referred to for further particulars.'

At the trial, after plaintiff had presented its case the defendant moved for a nonsuit. The evidence showed that the promissory note was secured by a chattel mortgage on the drilling rig; that plaintiff had repossessed the rig and sold it without giving notice as required by the Civil Code, i. e., Civil Code Sections 2967 and 2986 to 3011, and had applied the proceeds of the sale as heretofore noted. The defendant contended that plaintiff's failure to comply with the aforementioned Civil Code sections deprived it of the right to sue for a deficiency, citing the case of Metheny v. Davis, 107 Cal.App. 137, 290 P. 91, in support of his position. The plaintiff claimed that it was not suing for a deficiency; that the drilling rig was sold and the proceeds therefrom applied as heretofore indicated pursuant to an independent agreement between all parties; that the plaintiff's cause of action was for the unpaid balance on the promissory note.

Contemporaneously, the defendant moved for permission to amend its answer to conform to the proof by adding a defense which would set forth the failure of the plaintiff to comply with the law regarding the repossession and sale of mortgaged chattels. The plaintiff objected to the granting of this motion upon the ground that the issues had been settled at the pretrial conference and no variance therefrom could be made at this stage of the proceedings.

The court denied the motion for nonsuit and granted the motion to amend.

Thereupon further evidence was introduced; the matter was submitted and the court entered judgment in favor of the defendant, finding, among other things, that the plaintiff had repossessed the...