Winton Motor Carriage Co. v. Blomberg

• Decision Date: 19 March 1915
• Docket Number: 12196.
• Citation: 84 Wash. 451,147 P. 21
• Court: Washington Supreme Court
• Parties: WINTON MOTOR CARRIAGE CO. v. BLOMBERG.

147 P. 21

84 Wash. 451

WINTON MOTOR CARRIAGE CO. v. BLOMBERG.

No. 12196.

Supreme Court of Washington

March 19, 1915

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by the Winton Motor Carriage Company against Frank S Blomberg. From judgment for plaintiff, defendant appeals. Affirmed.

Peacock & Ludden, of Spokane, and W. W. Barton, of Sumatra, Mont for appellant.

Richard B. Harris and Alex. M. Winston, both of Spokane, for respondent.

ELLIS J.

This is an action in replevin, commenced July 24, 1913, to recover possession of one 16-passenger automobile, throughout the record called the large car, alleged to be of the value of $2,733.94, and one 7-passenger automobile, called the small car, and alleged to be of the value of $1,063.77. The small car was purchased by the defendant from the plaintiff on June 18, 1912, under a conditional contract of sale, the purchase price being $3,285. At the time of the commencement of the action, the amount due on this car equaled the value alleged in the complaint. The contract was in writing, contained no warranty, and the last sentence reads: 'This contract contains all the agreements between the parties.' At the time this action was commenced the payments stipulated in the contract were four months past due. The large car was purchased under a similar contract on April 18, 1913, and the payment stipulated in the contract to be made on June 18, 1913, was past due at the time of the commencement of this action. On July 24, 1913, the cars were seized under the replevin writ and on August 4, 1913, the defendant, desiring a redelivery of the small car, executed a bond for that purpose. The matter of the justification of the sureties on the bond on that day came before the court, Judge J. Stanley Webster presiding. Judge Webster, considering himself disqualified, had formerly declined to try the case, but with the acquiescence of both sides consented to hear this matter. The time allowed for redelivery on bond had then expired. The defendant being present in person and represented by his counsel, Mr. Barton, and the plaintiff being represented by its counsel, Mr. Winston, the matter was disposed of by agreement as follows:

'Mr. Winston: If your honor please, in the case of the Winton Motor Car Company, a corporation, against Blomberg, there is a legal question up which your honor declined to hear; I will say that matters have been adjusted between us so that it is merely a matter of form of taking some testimony as to the sufficiency of a surety, whom I have already interrogated and I am satisfied is sufficient; we have agreed that in this case--there were two machines, motor cars, sold upon conditional sale. The plaintiff, claiming that the defendant was in default in his payments, instituted this action in replevin praying for delivery, under our statute. The defendant desires to give a redelivery bond as to one of the cars, and that is agreeable to us, the understanding being that he shall give this redelivery bond even though the time has passed for it, and as to the other car, the other car not being now in controversy, that we may have judgment entered which will be prepared, adjudicating us to be entitled to possession. That is correct, is it not, Mr. Barton?

'Mr. Barton: We don't question either the ownership or possession of the one car, the large car; the only dispute is about the small car; that is the one for which we have given the bond.

'Mr. Winston: Yes, sir; and I simply say that because we have not prepared the judgment at this time. As soon as this bond has been executed, it can be approved later by your honor, and they can have possession, and I will present the judgment to Mr. Barton for his approval.'

On the afternoon of August 4, 1913, counsel for plaintiff prepared a judgment following the above-quoted understanding and presented it to Mr. Barton for his approval. Mr. Barton refused to agree to this, although he admitted that it followed the agreement previously entered into. On August 6, 1913, plaintiff's counsel notified defendant's counsel of the time and presented the judgment to the court for entry. Judge Webster waited for a couple of hours for Mr. Barton to arrive, and then talked with him over the phone, and, finding Mr. Barton had no particular objections to the judgment, but simply did not care to approve it until it had been submitted to his associate, Judge Webster finally signed the judgment. As to the small car the cause was continued. Thereafter the plaintiff filed an amended complaint, reciting the seizure of the two cars, the entry of judgment as to the large car, the redelivery of the small car on the redelivery bond, and also alleged that plaintiff was the owner of and entitled to possession of the small car, and prayed for judgment awarding it possession thereof, or for $1,063.77 and interest, which was alleged to be the value of the small car. The defendant in his answer alleged that at the time of the sale of each car the plaintiff agreed to replace without cost to defendant all broken parts on each car within one year from the date of its purchase. As to the large car he alleged there were many defects in the workmanship and material, and that it did not meet the specifications, and set up counterclaims aggregating $4,250. As to the small car he alleged there were many similar defects, and for these set up counterclaims aggregating $1,638.65. Defendant also alleged that plaintiff had waived prompt payment of the amounts stipulated in the contract for the small car. On September 26, 1913, upon motion of plaintiff all allegations in the answer relative to the large car were stricken by the court, Judge Joseph Sessions presiding. On October 7, 1913, defendant moved the court, Judge Bruce Blake presiding, to vacate the judgment theretofore entered. On November 7th, the motion was denied. No appeal has been taken either from this judgment or from the order denying the motion to vacate it. In January, 1914, the cause came on for trial to a jury, Judge Henry L. Kennan presiding. The plaintiff proved the purchase under contract of the small car by the defendant, proved the delinquency in payments and demand for payment or forfeiture of the contract, the demand for payment or forfeiture being by a letter from counsel for plaintiff to defendant on July 15, 1913 (nine days before the commencement of this action), in part as follows:

'This is to advise you that I have been instructed by the company to say to you, and I say to you on its behalf, that unless the overdue payments are made in full at the office of the company in this city on or before Saturday the 19th day of July, 1913, the company hereby elects, under the provisions of said contracts, to take possession of the cars, and I, therefore, if these payments have not been made by Saturday, demand that you deliver possession of the cars to the company at their office in this city. I am authorized and directed to say that unless you either pay or surrender possession of the cars suit will be brought against you to replevin the same on Monday next.

'If you desire to make any terms or conditions, it will be useless to see me as I have no authority to do anything further than I have indicated. Inasmuch as it may be difficult for you to raise this much money by Saturday, I would suggest that you raise what you can, see the local office, and endeavor to have them communicate with the company and arrange for an extension.'

Subject to the objection of plaintiff the defendant offered testimony to show a contemporaneous oral agreement between the parties whereby the plaintiff agreed to replace, without cost to defendant, all broken parts on the small car within a period of one year from the date of its purchase. Defendant proved that within a year of the date of purchase the frame or chassis of the car broke. Defendant's testimony does not show that this was the result of any defect in the material or workmanship, except that one witness testified that the frame was too light, although he admitted that he had not examined the break closely. Defendant proved that two crank shafts had broken, but this was subsequent to the expiration of the year following the purchase of the car. He also testified to other repairs that were necessary before the expiration of the year, but in none of these did he show that it was due to any defect in the material or workmanship. Defendant and his wife both testified, over plaintiff's objection, that at the time of purchasing the large car the agent waived prompt payment of the several installments due on the small car. The written contract between the parties, however, expressly stipulates:

'The Winton Motor Car Co. is not responsible for any agreement or promise other than written or printed on the face of this contract and holds the option of accepting or rejecting the terms and conditions of sale when made by its agents.'

At the close of all the evidence, upon motion of plaintiff the court directed a verdict in favor of the plaintiff and on January 27, 1914, judgment was entered upon the verdict adjudging plaintiff the owner of and entitled to the immediate possession of the small car; that defendant deliver the car to plaintiff and in default thereof that plaintiff have and recover from defendant the sum of $1,090.37 and costs. Defendant's motion for new trial was overruled. He appeals.

The appellant's claims of error may be grouped as follows (1) That the court erred in refusing to vacate the first judgment disposing of the large car and in striking the allegations of the answer touching the large car and in refusing to admit evidence in support of the counterclaim founded thereon; (2) that the court erred in taking the case...