Vanderpool v. Burkitt

Decision Date17 March 1925
Citation234 P. 289,113 Or. 656
PartiesVANDERPOOL v. BURKITT.
CourtOregon Supreme Court

In Banc.

Appeal from Circuit Court, Multnomah County; John P. Kavanaugh Judge.

Action by M. P. Vanderpool against E. Burkitt. From an order setting aside judgment for plaintiff, and for new trial, plaintiff appeals. Affirmed.

J. G. Arnold and Henry Bauer, both of Portland, for appellant.

R. A Coan and Malarkey, Seabrook & Dibble, all of Portland, for respondent.

RAND J.

Plaintiff had judgment on the verdict in the court below. The defendant moved to set aside the judgment, and for a new trial pursuant to section 174, Or. L., and from an order sustaining the motion plaintiff appeals.

That section provides that a former judgment may be set aside and a new trial granted on motion of the party aggrieved for any of the causes referred to in the statute which materially affected the substantial rights of such party. Where, under the provisions of this statute, a former judgment has been set aside by an order of the circuit court on motion of the defendant, the ultimate question for decision upon appeal is was there error occurring at the trial in relation to any of the matters referred to in the statute which materially affected the substantial rights of the defendant? To determine this question it is necessary to consider the causes of action set forth in the complaint, and the transaction out of which they arose.

The complaint sets forth two causes of action, both growing out of plaintiff's purchase of a truck from one R. C. Jaffee, upon which the defendant had a chattel mortgage. Jaffee had contracted to purchase the truck from the Motor Service Company under a conditional sale contract, which contained a stipulation that the title to the truck should not pass to him until the whole purchase price had been paid, and was in default when the mortgage to defendant was given and when plaintiff purchased the truck from Jaffee. The General Motors Acceptance Corporation, as assignee of the Motor Service Company, because of Jaffee's said default, commenced an action against the plaintiff to recover possession of the truck, and recovered judgment in said action. At the time of his purchase of the truck from Jaffee, plaintiff assumed and agreed to pay defendant's mortgage. Plaintiff satisfied said mortgage, and at that time both plaintiff and defendant believed that Jaffee was the absolute owner of the truck. In his first cause of action plaintiff seeks to recover from the defendant, as money had and received, the amount he paid to defendant in discharge of the mortgage, and bases his right to recover upon the ground that the consideration for which the payment was made has wholly failed. By his second cause of action he seeks to recover damages growing out of certain alleged false and fraudulent representations concerning Jaffee's supposed ownership of the truck, which it is alleged were made to him by defendant at the time he purchased the truck.

The transaction, in detail, out of which these causes of action arose, is substantially as follows:

On November 8, 1920, Jaffee contracted to purchase a truck from the Motor Service Company under a conditional sale contract which contained a stipulation that title to the truck should not pass to him until the whole purchase price had been paid, and that upon his default in making any of the payments provided for, his vendor should have a right to the immediate possession of the truck. The balance of the unpaid purchase price amounted to $968.31, and, by the terms of the contract, was payable in three equal quarter-annual installments. At said time Jaffee also executed and delivered to his said vendor a negotiable promissory note payable to its order for the balance of the unpaid purchase price of the truck, which note bore the same date as that of the conditional sale contract, and contained a description of the truck in question, and also the following recital:

"This note covers deferred installments under a conditional sale contract made this day between the payee and maker hereof."

Jaffee's said vendor thereupon offered to sell said security to the General Motors Acceptance Corporation, but that corporation refused to purchase said security unless Jaffee would agree to pay the unpaid balance in monthly payments, and thereupon said Motor Service Company entered into another conditional sale contract with Jaffee providing for monthly payments, and wrote across the face of said note, "Paid, Motor Service Co., by A.," and delivered said note with said indorsement written thereon to Jaffee, and took from him another note in lieu thereof. On December 24, 1920, Jaffee, having said truck, canceled note and first of said conditional sale contracts in his possession, borrowed from the defendant, who had no notice that the truck had not been paid for, the sum of $350, and gave his promissory note therefor, which, in terms, was payable on March 1, 1921, and delivered to defendant said first-mentioned contract and said first-mentioned note with said written indorsement thereon, showing that the same had been paid in full, and to secure the payment of said loan gave defendant a chattel mortgage on said truck, and in said chattel mortgage stipulated that said truck should be delivered to a garage and be held as dead storage until defendant's note was paid. Pursuant to said stipulation said truck was placed as dead storage in a garage, and a claim check was issued and delivered to defendant, under the terms of which no one but the defendant could remove said truck from said garage. On January 24, 1921, plaintiff contracted with Jaffee for the purchase of said truck, and in payment therefor he assumed and agreed to pay the note given to defendant by Jaffee, and also to sell and deliver to Jaffee an automobile for which he was to be allowed in exchange the sum of $1,150. Thereupon plaintiff delivered said automobile to Jaffee, and in pursuance of his agreement with Jaffee signed his name, as one of the makers thereof, to the note given by Jaffee to defendant, and received from defendant the conditional sale contract and the canceled note which had been given by Jaffee to the Motor Service Company, and which had been delivered to defendant by Jaffee at the time defendant loaned said sum, and with defendant's consent said truck was taken from said garage and delivered to plaintiff, and thereafter on March 2, 1921, plaintiff paid defendant the sum of $355.80 in satisfaction of defendant's said note and chattel mortgage.

At the time this payment was made, neither plaintiff nor defendant had any knowledge or notice that the truck had not been paid for, or that Jaffee was not the absolute owner thereof. Jaffee failed to pay any of the amounts due under said conditional sale contract, and on June 8, 1921, because of his default, the General Motors Acceptance Corporation, as assignee of the Motor Service Company, commenced action in the circuit court for Multnomah county against this plaintiff, as sole defendant, to recover possession of said truck. Plaintiff appeared in said action and filed an answer but subsequently, through his attorney, orally stipulated in said court and cause that the General Motors Acceptance Corporation was the owner and entitled to the immediate possession of the truck, and, based upon said stipulation, judgment was given in that action against this plaintiff for the possession of the truck. Because of the proceedings in that action, plaintiff now contends that the consideration for which he paid defendant's note and mortgage has wholly failed, and that he is entitled, because of such failure, to recover the sum of $355.80, which he paid to defendant in satisfaction of said note and mortgage. He also contends that under his second cause of action he was entitled to recover the agreed valuation of $1,150 placed upon the automobile delivered to Jaffee in exchange for the truck, because of defendant's statement to him that Jaffee's title to the truck was good, and that he had investigated Jaffee's title, and had seen or had talked with a representative of the Motor Service Company in regard to the title of Jaffee to the truck, and had been told by such representative that the truck belonged to Jaffee. In his testimony plaintiff testified that defendant told him that if he would assume the mortgage he would turn the truck over to him, and plaintiff could go ahead and use the truck, and that that was his reason for signing the note. ...

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  • Genest v. John Glenn Corp.
    • United States
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    ...Northern, Inc. v. Lester, 48 Or.App. 579, 617 P2d 906 (1980); Smith v. Dunn, 165 Or. 418, 107 P2d 985 (1940); Vanderpool v. Burkitt, 113 Or. 656, 234 P 289 (1925); Oil Shale Corp. v. Larson, 20 Utah 2d 369, 438 P2d 540 (1968); Morgan v. Brinkhoff, 145 Colo. 178, 358 P2d 43 (1960); 58 C.J.S.......
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