Miles v. Zorzi , 1926 Pa. Super. LEXIS 160 ( 1926 )

Argued March 1, 1926. Assumpsit for the purchase price of a motor-truck which plaintiff alleged he sold and delivered to defendant. The only defense raised by the affidavit of defense was that plaintiff asked defendant to try to secure a purchaser for the truck and that defendant took possession of it for that purpose but did not agree to buy it. The verdict of the jury in favor of plaintiff established the fact that the transaction was a sale and not a bailment. Although plaintiff's evidence disclosed that the truck was a used motor vehicle, he neither averred nor offered evidence tending to prove that he delivered to defendant any description of the truck or any written statement, as required by section two of the Act of June 30, 1919, P.L. 702, relating to the sale of second hand motor vehicles, which makes it a crime for any person to sell or pass title to any used motor vehicle, unless he shall, at or before such sale, or passage of title, deliver to the vendee a full description of said vehicle in duplicate, etc. Defendant contended in the court below that the contract of sale asserted by plaintiff is unenforceable, illegal and void because plaintiff failed to comply with the above mentioned requirements of the statute. He presented a point for binding instructions, based on that contention. The refusal of that point and the overruling of his motion for judgment n.o.v. are assigned for error in this appeal, and the same proposition is urged before us.

The question whether a vendor of a used motor vehicle, who has failed to deliver to the vendee, at or before the sale, the description and statement prescribed by section two of the Act of 1919, supra, can have the aid of the courts to recover the fruits of his contract, was before us in Brenner v. Pecarsky,86 Pa. Super. 414, not yet reported. That, like this, was a suit by a vendor for the selling price of a used motor vehicle. But there it appeared on cross-examination of plaintiff that he had failed to deliver to the vendee the written statement and description required by the statute. We held that this revelation of the illegal character of the transaction was a bar to a recovery. In this case plaintiff's evidence did not reveal the fact that he had not complied with the statute. It was not necessary to plaintiff's recovery that he should aver or prove that he had complied with it. That fact is presumed. There is no presumption that he violated the law. Therefore, there is no merit in the contention that plaintiff's case is based upon a violation of the statute and that he is invoking the aid of the courts to recover the fruits of an illegal contract. We are of opinion that the motion for judgment non obstante veredicto was properly denied.

We note, however, that although the affidavit of defense did not set up the defense that plaintiff did not deliver to defendant, at or before the sale, the written description and statement required by the Act of 1919, defendant testified, without objection by plaintiff, that the latter did not do so. If this is the fact the sale was illegal, unenforceable and void: Brenner v. Pecarsky, supra. With that evidence before it, the court below should have submitted to the jury the question whether plaintiff complied with the above mentioned requirements of the statute and should have charged that a failure to do so was a bar to recovery by plaintiff. We think that justice requires that the defendant shall have the opportunity to have that question submitted to another jury.

The judgment is reversed and a new trial is awarded.