Street v. Commercial Credit Co.

• Decision Date: 07 October 1929
• Docket Number: Civil 2792
• Citation: 281 P. 46,35 Ariz. 479
• Parties: F. M. STREET, Appellant, v. COMMERCIAL CREDIT COMPANY, a Corporation, and R. D. ROPER, Doing Business at Phoenix, Arizona, Under the Name and Style of R. D. ROPER MOTOR COMPANY, Appellees
• Court: Arizona Supreme Court

281 P. 46

35 Ariz. 479

F. M. STREET, Appellant, v. COMMERCIAL CREDIT COMPANY, a Corporation, and R. D. ROPER, Doing Business at Phoenix, Arizona, Under the Name and Style of R. D. ROPER MOTOR COMPANY, Appellees

Civil No. 2792

Supreme Court of Arizona

October 7, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Reversed and remanded.

Mr Albert D. Leyhe, for Appellant.

Mr Fred Blair Townsend and Mr. Earl F. Drake, for Appellees.

OPINION

LOCKWOOD, C. J.

This is an action by F. M. Street, hereinafter called appellant against Commercial Credit Company, a corporation, and R. D. Roper, doing business under the name of R. D. Roper Motor Company, hereinafter called appellees, for damages for the alleged conversion of a certain automobile. The case was tried to a jury, which, under the peremptory instructions of the court, returned a verdict for appellees, and, from the judgment rendered thereon and the order denying the motion for a new trial, this appeal is taken.

There is no reporter's transcript of the evidence, but both appellant and appellees presented suggested statements of fact to the trial judge, who, after amending them in accordance with his recollection of the evidence and proceedings, signed both, stating in his certificate that this was the only way he could properly present the facts, and that the two were to be taken together. From these two statements we have taken the following facts as material to a proper determination of the case:

Appellant in January, 1927, purchased from Roper a Chrysler automobile for the sum $2,064.06, payable $900 cash, and the balance in monthly installments of $64.67, payable on the eight day of each month, a conditional sales contract being executed in the usual form, assigned by Roper to the Commercial Credit Company, and recorded in Maricopa county only. We shall refer to its terms as seems necessary. The payments for February, March and April were duly made. Early in May appellant left her home in Maricopa county for Pima county, taking the automobile with her, and intending to be gone a few days only, but for various reasons her stay was prolonged, and she did not return to Maricopa county permanently until early in July, though she did make several trips back and forth between the two counties in the automobile, but otherwise keeping it in Pima county. Appellees were never notified of the removal, nor did they consent thereto. On May 20th one Newton, an agent of appellant, paid the installment due May 8th, which was accepted by the company and applied on the contract. On July 5th, appellant having returned permanently to her home in Maricopa county, the company repossessed itself of the automobile peaceably but against the will of appellant, claiming that the contract had been violated both by removal from the county of registry and by failure to pay the June installment, and declared it forfeited.

On the same day appellant tendered to the company the delinquent installment with interest and all expenses of taking, keeping and storage, and made demand for the redelivery of the automobile. The company refused to accept the tender, claiming that by virtue of the contract the entire balance of the purchase price had become due for failure to pay the June installment, and that no less amount would be accepted. The appellant the next day tendered both the June and July installments, and added an offer to furnish a bond for the payment of the entire balance due, but the offer was refused for the same reasons. Thereafter the company gave notice that it intended to sell the automobile under the provisions of the Uniform Conditional Sales Act, chapter 40, Session Laws of 1919, which we shall hereafter call the act, and on July 22d the sale was made to Roper. Thereafter this suit for damages was brought.

There are several assignments of error, raising a number of interesting points, but we need consider but one question of law on this appeal. Was the tender admittedly made by appellant sufficient to set aside the forfeiture and reinstate the contract? If it was, necessarily the trial court erred in instructing the jury to return a verdict for appellees.

The question is one of some moment, involving as it does an interpretation of one of the principal provisions of the act. Counsel for both appellant and appellees state frankly that they have been unable to find an adjudicated case interpreting the particular part of the section involved herein, and a somewhat extensive search on our part has failed to disclose any. The section of the act which we consider reads in part as follows:

" Section 18 (Redemption). If the seller does not give the notice of intention to retake described in Section 17, he shall retain the goods for ten days after the retaking within the state in which they were located when retaken, during which period the buyer, upon payment or tender of the amount due under the contract at the time of retaking and interest, or upon performance or tender of performance of such other condition as may be named in the contract as precedent to the passage of the property in the goods, or upon performance or tender of performance of any other promise for the breach of which the goods were retaken, and upon payment of the expenses of retaking, keeping and storage, may redeem the goods and become entitled to take possession of them and to continue in the performance of the contract as if no default had occurred. . . ." (Italics ours.)

The only installment delinquent under the terms of the contract at the time of the retaking of the car was the June installment of $64.67, and it is admitted appellant made a proper tender of not only this but the July and August payments as well, together with all expenses and interest as required by the statute, the only objection made by appellees being to the amount and not the manner of tender.

Appellees, however, rely on the acceleration provision of clause 6 of the conditional sales contract, which reads, so far as material, as follows:

"6. If the purchaser defaults on any payment or fails to comply with any of the terms or conditions hereof . . . the full amount then unpaid hereunder shall become immediately due and payable. . . . "

It is argued that the "amount due under the contract at the time of retaking," in view of the acceleration clause of the contract above, was the entire balance of the purchase price. Is this contention well founded?

Section 26 of the act provides:

"No act or agreement of the buyer before or at the time of the making of the contract, nor any agreement or statement by the buyer in such contract, shall constitute a valid waiver of the provisions of Sections 18, 19, 20, 21 and 25."

We have said in O. S. Stapley Co. v. Rogers, 25 Ariz. 308, 216 P. 1072, 1074, that "the provision in this law forbidding the buyer to enter into any...