Paine v. Meier & Frank Co. ( 1933 )

The pleadings of the plaintiffs aver: "At no time did defendant inform plaintiffs or either of them that they would be held to the strict terms of said conditional sales contract or that defendant would elect to repossess the said personal property or terminate the said contract, and defendant repeatedly informed plaintiffs that defendant would be satisfied with and would accept payments from time to time as plaintiffs might be able to make them, and lulled these plaintiffs into the belief that defendant had no intention of enforcing the strict terms of the said conditional sales contract * * *. That notwithstanding the defendant had continued to accept payments from plaintiffs when overdue without objection, suddenly, without warning or notice of their intention so to do, and without giving plaintiffs a reasonable or any opportunity to complete the payments before so doing, and without repossessing the said furniture, and at a time when the said property was in the possession of J.C. Martindale, acting as receiver * * * defendant, in utter disregard of the rights of these plaintiffs, sold the personal property * * *. The defendant at no time notified these plaintiffs or either of them that it had any intention or desire to enforce the strict performance of the terms or the conditions of said contract, or that it would not continue to accept the payments of these plaintiffs from time to time as they could make the same, and these plaintiffs were not given any reasonable time before sale by the defendants in which to pay the balance due upon the said contract, and on the contrary, through their officers and agents, one Lloyd Frank and certain employees of its credit department, whose names are to plaintiffs unknown, lulled these plaintiffs into the belief that the strict terms of said contract would not be enforced * * * and that these plaintiffs should be permitted to have an extension of time for the payment of the balance of the said purchase price. That had plaintiffs been advised of any intention of the said defendant not to continue to waive the strict terms of the performance of said contract, or that defendant would attempt to exercise any rights of forfeiture for failure to make payments punctually as required by the times and conditions of said contract, these plaintiffs would have procured the funds with which to make said payments. * * *" For proof of these averments the plaintiffs relied largely upon a number of entries appearing upon the face of the credit-debit cards mentioned in the majority opinion which showed that the plaintiffs made payments in varying amounts at irregular intervals. Upon the reverse side of these cards is a series of entries which the defendant contends explains or lends color to the entries upon the face of the cards. Some of the entries are clearly of that character and indicate that they were made in the regular course of duty by the credit department. For instance, on August 16, 1927, the account was credited with a payment of $25. Upon the reverse side of the card is recorded: "8-16-27 Hoover office turned in $25.00 chk. payable to J. Bradlaw, indorsed to us. W." Some record the efforts of the defendant's credit department to persuade the plaintiffs to make payments. Upon the back of the card which records the debits and credits for the year 1929 appear the following entries:

"5-11-29 Phoned him — will mail chk for April payment today and May payment later part of next wk. C.R. 6-22-29 Phoned Paine — will bring up to date on July 1st — has money due him from loggers, etc., which he expects to collect by 7-1-29. CR. 7-13-29 letter asking him to bring up to date CRKG."

The entries vary in nature but several are of substantially the same character as those just quoted. All these reverse-side entries were excluded from the consideration of the jury. J.A. Albrich, credit manager of the defendant, as a witness for the plaintiffs, vouched for the authenticity of the entries upon the face and reverse side of these cards. The following is virtually the only testimony which he gave upon this subject: "This is the ledger record of the account entered into between Ross Enyart and Bessie Enyart for the purchase of furniture, and later assigned by them to Elmer D. Paine and Laura B. Paine. This is a complete record of the charges for interest and payments on the merchandise — and merchandise returned; a complete record of everything in connection with the account." The plaintiff Elmer D. Paine, in substantiation of his contention that the defendant, without protest, accepted whatever the plaintiffs paid and never asked for more, testified: "Well, I went up to Meier Frank's with Enyart, when I was negotiating to buy the hotel, and I talked to a Mr. Roberts, one of the credit men that handled the contract, and he showed me the contract. I noticed it called for payments of $400 a month and interest; I told Mr. Roberts that was too steep a payment for me to make and he ratified that verbally — he said, ``You don't have to keep that amount up. It has not been kept up under that contract'." This testimony was received, although the witness, upon becoming assignee of the conditional sales contract, attached his signature to a writing from which the following is quoted: "I hereby covenant and agree to accept said contract subject to all the terms, covenants and conditions mentioned therein." Clearly, the parol evidence rule protected the instrument just mentioned from this testimony whereby the witness sought to render it a nullity. No objection was made to this testimony but nevertheless the incident becomes one of importance when we consider the court's action in excluding the entries upon the reverse side of these debit-credit cards.

I know of no reason why these entries were not admissible in evidence. Very likely the entries appearing upon the face of these cards, showing payments in various amounts made at irregular intervals, convinced the jury that the plaintiffs' pleadings recited the truth. The jury perhaps drew the conclusion that the defendant accepted these payments without objection and without any promise from the plaintiffs to eventually adhere to the terms of the conditional sales contract. It, therefore, reasoned that the repeated breaches, which occurred through the plaintiffs' failure to pay the monthly installments of $400, were waived by acceptance of the partial payments. But had the jury been permitted to look at the other side of these cards, it would have seen that upon the same day when the defendant was accepting a smaller sum than the amount due the plaintiffs were making the assurances recorded upon the cards. Let us bear in mind the fact that the authenticity of the entries upon the reverse side of the cards was proved by the same witness who vouched for those upon the face of the cards and in the selfsame words. All of these entries were made in the regular course of business. Wigmore on Evidence (2d Ed.) § 1521. If the fact that some of them are self-serving excludes them, then virtually all entries made in the course of business, and practically all account books, would be excluded from the court room. Such is not the law. Section 9-210, Oregon Code 1930, provides:

"When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole, on the same subject, may be inquired into by the other * * * and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."

The objection which was for the first time voiced upon reargument of the cause in this court, that a part of the entries upon the reverse side are of matters immaterial to this cause, can not sustain the opinion of the majority. It was the plaintiffs, and not the defendant, whose offer obtained the introduction of the face of the cards and excluded the reverse. The above objection was not made in the circuit court and is not even mentioned in the briefs. The immaterial matters could not have been prejudicial to the plaintiffs had the entries been received in evidence, and, without doubt, would have been excluded by the court if attention had been directed to their nature.

But let us assume that the entries under consideration were not admissible in evidence. If the record, as it is, shows that the plaintiffs were in default July 17, 1930, when the defendant resold the merchandise to Winters and Steele (while the receivership was in effect), surely the plaintiffs are not entitled to a judgment against the defendant. Let us, therefore, inspect the account. The aforementioned debit-credit sheets show that December 24, 1929, the plaintiffs paid on account $500; February 1, 1930, they paid on account $50.90, and May 6, 1930, $250. The latter is the last payment which they made and the above are the only payments which they made since September 6, 1929. Thus, it is evident that although the contract which they had assumed required payments of $400 June 1, 1930, and July 1, 1930, these payments were not made. The jury possibly would have been warranted in believing that the plaintiffs' default on December 1 was waived by the defendant when, on the 24th of that month, it accepted the $500 payment and that further waivers occurred on February 1 and May 6. But on June 1 and July 1 nothing whatever except a breach occurred. No payments were made, no conferences were held, and nothing developed from which one could infer a waiver of the defaults which occurred upon these days. Why then cannot the defendant avail itself of those two defaults? From Estrich, Installment Sales, p. 626, I quote:

"Obviously the acceptance by the conditional seller of a number of payments less than the amount specified in the contract does not amount to a waiver of his right to enforce the contract upon a further breach by the refusal or failure to make any further payment on account of the purchase price."

The textbook just mentioned cites Burrier v. Cunningham PianoCo., 135 Md. 135 (108 A. 492), in which the circumstances disclosed by the evidence were not substantially different from those before us. In disposing of a contention similar to the one presented by the plaintiffs, the court said:

"The acceptance by the plaintiff of a number of payments which were less than the amount specified in the contract did not amount to a waiver of its right to enforce the contract upon a further breach by the refusal or failure of the defendant to make any further payment on account of the purchase price."

Applying this principle of law, it is evident that the plaintiffs are not entitled to retain the judgment which they now possess. The "taking" of this merchandise by the defendant on July 17, 1930, was at best a technical one. Plaintiffs rely upon that technical taking as the foundation of their claim. But their breaches of their contract on June 1 and July 1, 1930, were real and, in my opinion, preclude any recovery in this action. I, therefore, dissent.

RAND, C.J., concurs in this dissenting opinion.