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Pacific Finance Corporation of California v. Burkhart

Supreme Court of Arizona

December 16, 1940

H. E. BURKHART, Doing Business Under the Trade Name and Style of BURKHART MOTOR COMPANY, Appellee

APPEAL from a judgment of the Superior Court of the County of Yuma. Henry C. Kelley, Judge. Judgment affirmed in part and reversed in part with instructions.

Mr. Allan K. Perry and Mr. William H. Westover, for Appellant.

Mr. Ray C. Bennett, for Appellee.


Page 381

[56 Ariz. 384] LOCKWOOD, J.

Pacific Finance Corporation of California, a corporation, hereinafter called plaintiff, [56 Ariz. 385] brought suit against H. E. Burkhart, doing business under the trade name and style of Burkhart Motor Company, hereinafter called defendant, on fifteen causes of action. Defendant demurred to the complaint and to each separate cause of action on the ground that none of them stated a cause of action against defendant, and answered and cross-complained alleging that plaintiff was indebted to him in the sum of $1,166.59. The trial court sustained the demurrer to causes of action one to thirteen, inclusive, and overruled the demurrer to the fourteenth and fifteenth causes of action, and plaintiff electing to stand upon each cause as pleaded, the first thirteen were dismissed.

The case went on to trial on the fourteenth and fifteenth causes of action, and defendant's cross-complaint. The court found in favor of plaintiff on the fourteenth cause of action in the sum of $345.12, and in favor of defendant on his cross-complaint in the sum of $1,166.59, and that plaintiff was not entitled to attorney's fees as asked in its fifteenth cause of action, whereupon judgment was entered in favor of defendant in the sum of $1,166.59, less $345.12, being the amount established by plaintiff under its fourteenth cause of action, and plaintiff appealed from the judgment, with the exception of that portion in favor of it on its fourteenth cause of action.

There are but two assignments of error, the second of which is dependent upon whether the court was correct in its ruling sustaining the demurrers to the first thirteen causes of action, with the exception of the eighth, which plaintiff apparently admits were correctly determined. It is, therefore, necessary that we consider the allegations of the complaint.

We will summarize in a factual manner the allegations of the first cause of action only, as all of those to which demurrers were sustained are identical, with [56 Ariz. 386] certain exceptions which we shall point out as necessary. Plaintiff is a California corporation, while defendant was a resident of Yuma and engaged in business as a dealer in motor vehicles. On September 14, 1936, he sold to one W. L. Hubbell a Dodge automobile under a contract of conditional sale, to be paid for in installments. This conditional sale agreement was in the usual form, and we shall refer to any particular provision thereof as may be necessary without setting forth the instrument in full. On the same day defendant assigned the contract of sale and all rights thereunder to plaintiff by a written instrument which reads, so far as material to this case, as follows:

"For value received, I hereby sell, transfer and assign to Pacific Finance Corporation of California (hereinafter called the assignee) all my right, title and interest in and to the within contract, and in and to all moneys due and to become due and payable thereunder, and I do hereby sell, transfer and assign to the assignee all my right, title and interest in and to the property in said contract mentioned; and I guarantee, warrant and agree to defend the title of said property hereby conveyed against all lawful claims and demands whatsoever, except as against the rights of the purchaser in said contract; and I agree that, if the assignee shall take possession of said property for failure of the purchaser to perform any of the conditions or requirements of said contract, I will pay to the assignee the balance then unpaid under said contract within thirty (30) days after delivery of said property at my place of business, provided that such delivery be made within ninety (90) days after due date of the then unpaid installment longest overdue (the said ninety (90) days shall not include any period of time during which the assignee may be required by law to hold such property for redemption by the purchaser or for any other reason, or during which time the property may be held by any court or government agency), but no such delivery shall be required to be made to me if at the time of such taking of possession I am no longer in [56 Ariz. 387] the automobile business or am deemed by the assignee to be an unsafe risk, in either of which events the assignee shall have full

Page 382

right to make sale of said property as in said contract provided and I will upon demand pay to the assignee any and all sums provided in said contract to be paid by purchaser after sale; but if at the time the assignee makes demand on the purchaser or takes legal steps for the possession of said property, any installment then due shall be more than forty-five (45) days delinquent or if said property is alleged by the assignee to have been stolen, embezzled, confiscated, or burned and notice of loss is not filed with the insurer thereof within forty-five (45) days after the assignee is upon notice that such loss of the property is alleged to have occurred, then I shall stand relieved of all liability hereunder;... In the event that suit is brought by said assignee to enforce any of my obligations under this assignment, then I agree to pay to such assignee a reasonable attorney's fee in such suit....


"BY H. E. BURKHART, Owner."

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