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Perigot v. Steiker

Decided: February 13, 1952.

CHARLES PERIGOT, PLAINTIFF-RESPONDENT,
v.
JACOB STEIKER, MEYER STEIKER, DEFENDANTS, AND SYDNEY STEIKER, TRADING AS STEIKER MOTORS, DEFENDANT-APPELLANT



McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

A course of common events sometimes produces an aspect of legal complexity. Here the plaintiff merely sought to dispose of his model 1939 truck and acquire two model 1944 trucks. We relate the eventualities.

The plaintiff negotiated with one Rawlings who was a salesman in the employ of the defendant Sydney Steiker, trading as Steiker Motors. The bartering between them resulted in the execution on March 5, 1948, by both the plaintiff and the salesman of a memorandum entitled "Purchase Order" wherein it appears to have been mutually agreed between them in the absence of the defendant that the plaintiff would purchase from the defendant two trucks, the one designated "1 Fed 29 M 1944," the other "1 Fed 18 M 1944," for the total price of $4,700; that the plaintiff would make an initial payment of $1,000 in cash to be applied on account of the purchase price; that the balance would be payable in monthly instalments evidenced by a series of promissory notes, and that a "trade-in" value of $800 would be allowed the plaintiff for his truck, which sum would be credited upon the instalment notes.

However, two conditional sale agreements in the conventional form were thereafter prepared by the defendant. The one agreement dated March 12, 1948, related to the sale of Federal truck 18 M 1944 for the price of $3,050, crediting thereon the sum of $1,017, leaving a balance payable in 15 monthly instalments of $158.98 each; the other agreement dated March 15, 1948, also related to a Federal truck 18 M 1944 of a different serial number for the price of $2,450,

upon which a credit of $817 is noted with a balance likewise payable in 15 instalments of $128.12 each.

The agreements were forthwith assigned and the accompanying promissory notes negotiated by the defendant to Credit Corporation. The initial instalment due in April, 1948, was paid to Credit Corporation by the plaintiff; the May, 1948, instalment was paid by the check of the defendant, but whether it was paid by the defendant out of his own funds or in pursuance of a cash payment delivered to him or to Rawlings by the plaintiff was in dispute. The instalments maturing in June, July, and August were not paid and the two trucks were repossessed by Credit Corporation on August 20, 1948.

Although financially able to pay the instalments in default and regain possession of the trucks, the plaintiff refrained from doing so. The salesman Rawlings died.

The plaintiff prosecuted this action to recover compensatory damages from the defendant upon the allegation that in consequence of the agreement between the plaintiff and the salesman Rawlings made on March 5, 1948, the defendant was contractually obligated to pay the three instalment notes due in the months of May, June, and July, and that the defendant failed to fulfill that obligation. This footing of the plaintiff's alleged cause of action is evinced by the complaint and, indeed, more definitely by the pretrial order.

The plaintiff sought to recover from the defendant the deposit of $1,000, the trade-in allowance of $800, the $61.30 paid to Rawlings in cash, the amount paid to Credit Corporation in discharge of the first note, and loss of profits resulting from the repossession of the trucks by Credit Corporation. The jury rendered a verdict in his favor against the defendant Sydney Steiker in the sum of $3,361.

Preliminarily we observe that there are three writings relating to the transaction, namely the "purchase order" dated March 5, 1948, the conditional sales agreement concerning one truck dated March 12, 1948, and a similar agreement relative to the other truck dated March 15, 1948.

Each of the sales agreements embodies the stipulation: "Purchaser acknowledges receipt of a true copy of this agreement which contains the entire contract and supersedes all other agreements." Neither includes any term, provision, or covenant requiring the defendant to pay any of the monthly notes. Indeed, in the agreement of March 15, 1948, the plaintiff is given credit for the trade-in allowance for his truck in the sum of $800 on account of the purchase price of the truck therein specified. Obviously if the defendant ...


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