Swank v. Moisan

• Decision Date: 24 July 1917
• Citation: 166 P. 962,85 Or. 662
• Parties: SWANK v. MOISAN ET AL. [a1]
• Court: Oregon Supreme Court

166 P. 962

85 Or. 662

SWANK v. MOISAN ET AL. ^[a1]

Supreme Court of Oregon

July 24, 1917

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Action by Sherm Swank against Mart T. Moisan and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

This is an action on a promissory note for $750 given by the defendants to plaintiff October 5, 1912. The complaint is in the usual form. The answer denies the allegations of the complaint "except as hereinafter alleged." A first affirmative answer alleges an agreement between the parties for the exchange of a runabout owned by defendants for a touring car owned by plaintiff and the execution of the note in question to cover the difference in the value of the two vehicles. The defendants allege certain warranties of the touring car which were broken, to their damage in a sum equal to the face of the note given plaintiff. A second affirmative answer alleges that the note was given to make up the difference in the value of the automobiles exchanged, and then sets up the following allegations:

"That for some time prior to the 5th day of October, 1912, the plaintiff had duly registered with the secretary of state of Oregon his said Maxwell touring car, as is provided by section 3 of chapter 174 of the Session Laws for the year 1911, but the plaintiff failed, upon making said sale and exchange with defendants as aforesaid, and when transferring and delivering said Maxwell touring car to defendants, within five days after the date of said sale and exchange, or at any time thereafter, to notify the secretary of state of such sale or giving said secretary of state the name of the purchaser, and the number under which said automobile was registered, or did said defendants, within five days after making said sale and exchange, or any time thereafter, make application to the secretary of state of Oregon to have the license or registration number transferred to them, as is provided by section 8 of said chapter 174 of the Session Laws for the year 1911, and by reason of the premises the aforesaid sale and transfer is illegal and void."

The statute referred to in the answer is the motor vehicle act of 1911. It makes provision for the operation and registration of motor vehicles. Section 8, which is material here, is as follows:

"Upon the sale of a vehicle registered in accordance with this act the vendor shall, within five days after the date of such sale, notify the secretary of state, stating the name and business address of the purchaser and the number under which such vehicle is registered; provided, that the vendor may, upon application at the time of such notice, have the registration number transferred to a vehicle described in such application and owned by him, and which is not licensed under the law; or if any application be not received by the secretary of state for a transfer of the license number by the vendor, as above provided, the vendee, upon filing application after five days and within ten days after the date of sale, may have the license or registration number transferred to him. A fee of one dollar shall be paid to the secretary of state for each transfer all applications for which he shall file in his office and note upon the registration book or index such change, and at least monthly notify every county clerk of the state of such transfers, each of whom shall immediately note the same on the list of registered vehicles and kept on file as herein provided. No sale or transfer of any vehicle shall be valid without compliance with this section."

On plaintiff's application the court required defendants to elect on which of the two affirmative answers they would defend, holding, in effect, that these answers are inconsistent and contradictory. Defendants elected to try the case on their first affirmative answer. Plaintiff replied admitting that the note was given in connection with the exchange of the automobiles, to cover the difference in their value, and denying the other affirmative allegations of the answer. The jury found for plaintiff; from a judgment in his favor defendants appeal.

William P. Lord, of Portland, for appellants. W. C. Winslow, of Salem, for respondent.

McCAMANT, J. (after stating the facts as above).

This appeal raises only one question of law: Did the circuit court err in requiring defendants to elect on which of their affirmative defenses they would stand? The power of the circuit court to require such election in a proper case is well established. Harvey v. Southern Pacific, 46 Or 505, 512, 80 P. 1061, provided that the application of the adverse party is made seasonably. Rosenwald v. Oregon City Transportation Co., 163 P. 831, 833. The action of the court in requiring an election must be based on some good reason shown by the record. Susznik v. Alger Logging Co., 76 Or. 189, 195, 147 P. 922.

The only ground for requiring an election which is relied on in this case is that the two defenses are "inconsistent and legally contradictory." If the contract of sale is invalid as contended in the second affirmative answer, the warranties which defendants set up in their first affirmative answer are also invalid. 2 Mechem on Sales, § 1056; Howard v. Harris, 8 Allen (Mass.) 297; Gunderson v. Richardson, 56 Iowa, 56, 8 N.W. 683, 41 Am. Rep. 81; Finley v. Quirk, 9 Minn. 194 (Gil. 179), 86 Am. Dec 93, 95. The legal contentions of defendants are therefore not harmonious, but this is not sufficient to charge these answers with inconsistency. Snodgrass v. Andross, 19 Or. 236, 239, 23 P. 969. Under the Oregon decisions answers are not inconsistent so long as they may both be true.164 McDonald v. American Mortgage Co., 17 Or. 626, 633 21 P. 883; Snodgrass v. Andross, 19 Or. 236, 239, 23 P. 969; Veasey v. Humphreys, 27 Or. 515, 520, 41 P. 8; Randall v. Simmons, 40 Or. 554, 559, 67 P. 513; Dutro v. Ladd, 50 Or. 120, 122, 91 P. 459; Susznik v. Alger Logging Co., 76 Or. 189, 195, 147 P. 922. Tested by this rule, the affirmative answers are not inconsistent, and the circuit court should not have required defendants to elect as between them.

Notwithstanding this error, the judgment should be affirmed if the second affirmative answer is insufficient. The sufficiency of this answer is dependent on the construction to be given section 8 of the motor vehicle law of 1911, quoted above. The purpose of legislation requiring the registration of automobiles is defined in Huddy on Automobiles (3d Ed.) § 59:

"The reason assigned for the necessity of registration and licensing is that the vehicle should be readily identified in order to debar operators from violating the law and the rights of others, and to enforce the laws regulating the speed, and to hold the operator responsible in cases of accident. The Legislatures have deemed that the best method of identification, both as to the vehicle and the owner or operator, is by a number on a tag conspicuously attached to the vehicle. In case of any violation of law this furnishes means of identification, for, from the number, the name of the owner may be readily ascertained and through him the operator."

With the above purposes in view the Legislature has provided that unless a motor vehicle is registered with the secretary of state within ten days after its sale, such sale is invalid. The act does not make the sale invalid ab initio. The contract of these parties was valid when made. The effect of the statute is to attach to every sale of a motor vehicle a contingent condition subsequent under which the sale may become abortive on failure to comply with the statutory requirements with reference to registration. The contract with which we are concerned was not immoral, and it violated no st...