Citation Numbers: 167 A. 493, 109 Pa. Super. 256
Judges: OPINION BY JAMES, J., July 14, 1933:
Filed Date: 4/18/1933
Status: Precedential
Modified Date: 1/13/2023
Submitted April 18, 1933. This is an action of assumpsit brought by W.H. Weigand against the Standard Motor Company, a corporation, to recover the sum of $204, with interest from May 9, 1931. On the 16th day of June, 1930, the plaintiff purchased from the Standard Motor Company a Chevrolet car for the sum of $537 upon which he made a cash payment of $225, leaving a balance due of $312 which was to be paid at the rate of $27 per month, commencing on the 19th day of June, 1930 and a bailment lease was executed by the parties. The bailment lease was subsequently assigned to the General Motors Acceptance Corporation in which assignment the Standard Motor Company covenanted on default of the payment of any installment . . . . . . by the lessee to pay the full amount then remaining unpaid to the General Motors Acceptance Corporation, upon demand, . . . . . . The lease further provided, inter alia, as follows: "if the lessee default in complying with the terms hereof, the lessor may take immediate possession of said property without demand. . . . . ." Payments were regularly made by lessee until the monthly installments of March and April and on the 25th day of April, 1931, plaintiff was in default in the sum of $54, or two monthly installments, and there remained due and unpaid on the contract the sum of *Page 258 $96. The General Motors Acceptance Corporation was pressing plaintiff for payment of the money or the return of the car, and plaintiff, being unable to pay the installments, brought the car to the Standard Motor Company. The plaintiff, corroborated by his wife, testified that on April 25, 1931 he entered into an agreement with the Standard Motor Company, through its manager Roy Docherty, at the time of the return of the car, whereby the Standard Motor Company was to sell the car and pay off the balance due to the General Motors Acceptance Corporation and give the balance to the plaintiff. The Standard Motor Company sold the car for $300 and suit was brought to recover the difference between $300, the amount realized from the sale of the car, and the $96 due the finance company, or $204. Plaintiff further testified that the Standard Motor Company was to furnish a rim and tire which was to be deducted from the price obtained for the car. Defendant denied that the above contract was entered into but avers that the Standard Motor Company took the Chevrolet car over as a repossessed car and that being in sympathy with plaintiff, he, Roy Docherty, manager of Standard Motor Company, picked out a used Pontiac car and gave it to the plaintiff for any possible equity he might have in the Chevrolet automobile; that application was made for the transfer of the license and that some time later the license cards were received by plaintiff; that the Pontiac car was returned by the plaintiff in a few days and later sold as a junk car. It further appeared in the testimony of the defendant that the Standard Motor Company did a general overhauling job on the Chevrolet car amounting to $62.19 which they also set up as a defense; that a check dated April 25, 1931 was executed by Standard Motor Company and received by General Motors Acceptance Corporation either on April 25, or April 28, 1931 but *Page 259 it was not until May 8, 1931 that the General Motors Acceptance Corporation, by registered mail, notified the plaintiff that by reason of the default in payments the entire amount due under the contract was unpaid and immediately due and payable. The matter was submitted to the jury and the jury rendered a verdict for the plaintiff in the sum of $150. A point for binding instructions was submitted by defendant which was refused and motion made for judgment n.o.v., which the court subsequently granted and directed that judgment be entered in favor of the defendant notwithstanding the verdict, on the ground that there was no consideration to support the contract upon which suit was brought.
Appellant contends that the entry of judgment n.o.v. was improper for two reasons:
1. That it did not appear from the record that a point in writing for binding instructions was submitted to the court below.
2. That the promise of the defendant was based upon sufficient consideration.
1. We are unable to agree with appellant's first reason as we find sufficient facts in the record to justify the conclusion that such a point in writing was submitted. At the conclusion of the charge of the court, we find the following: "We have been asked on the part of the defendant to charge you on a certain point. The point is refused without reading. 1. Under all the evidence in this case the verdict must be for the defendant. Answer: Refused without reading." In addition, we find from the record that under Defendant's Bill of Exceptions to the charge of the court, defendant excepts to the charge of the court generally and the refusal of defendant's first point. Defendant has printed in its paper book the point which it claims was found among the records of the court below which has not been questioned by appellant's *Page 260 counsel; and, the opinion of the court states that a point for binding instructions was made by defendant which was refused and motion was made for judgment n.o.v. Under all these circumstances, we can not conclude that a written point was not actually submitted.
2. The opinion of the lower court states: "The terms of the bailment lease provide that possession after default on the part of the plaintiff was unlawful. Therefore, the bringing of the car in and making the agreement, if it were entered into, was without consideration and therefore void; they did nothing under the law which the Standard Motor Company or the General Motors Acceptance Corporation could do by issuing a replevin and seizing the car or taking it without legal process, and therefore there was no benefit derived by the defendant in entering into such a contract to sell the car and give the plaintiff the proceeds after payment of the balance due to the General Motors Acceptance Corporation. This position is supported by Corpus Juris, Volume 13, page 353, Section 209 (1), which reads as follows: `The promise of a person to carry out a subsisting contract with the promisee or the performance of such contractual duty is clearly no consideration, as he is doing no more than he was obliged to do, and hence has sustained no detriment, nor has the other party to the contract obtained any benefit.' This is supported by many decisions in Pennsylvania, some of which are: Erny v. Sauer,
A test of good consideration is whether the promisee at the instance of the promisor, has done, forborne or undertaken to do anything real, or whether he has suffered any detriment, or whether in return for the promise he has done something that he was not bound to do or has promised to do some act or has abstained from doing something: Presbyterian Board of Foreign Missions v. Smith,
In the case of Rodgers v. Studebaker Sales Co.,
In the instant case, the plaintiff was not bound to return the car to defendant and the court will not inquire as to what benefit was received by the Standard Motor Company, yet, the testimony discloses that the arrangement made by plaintiff was of advantage to the defendant. The disadvantage suffered by plaintiff or the benefit derived by defendant was on either phase sufficient consideration for the promise of the defendant motor company.
We, therefore, hold the court below to be in error in entering judgment notwithstanding the verdict. Judgment is herewith reversed and the record is remitted with instructions to enter judgment for the plaintiff upon the verdict.
Lewis v. Hamilton's Exrs. , 301 Pa. 173 ( 1930 )
Troop v. Franklin Savings Trust Co. , 291 Pa. 18 ( 1927 )
Miles' Estate , 66 Pa. Super. 115 ( 1917 )
Presbyterian Board of Foreign Missions v. Smith , 209 Pa. 361 ( 1904 )
Erny v. Sauer , 234 Pa. 330 ( 1912 )
University of Pennsylvania's Trustees v. Coxe's Exrs. , 277 Pa. 512 ( 1923 )
Rodgers v. Studebaker Sales Co. , 102 Pa. Super. 402 ( 1931 )
Third N.B. T. Co., Scranton v. Rodgers , 330 Pa. 523 ( 1938 )
Mikos v. Kida , 314 Pa. 561 ( 1934 )
Warren Tank Car Co. v. Dodson , 330 Pa. 281 ( 1938 )
Hillcrest Found't'n, Inc. v. McFeaters , 332 Pa. 497 ( 1938 )
Goodbody v. Margiotti , 323 Pa. 529 ( 1936 )
Landsdowne Finance Co. v. Prusky , 120 Pa. Super. 555 ( 1935 )
Bush v. Atlas Auto. Finance Corp. , 129 Pa. Super. 459 ( 1937 )
Graboyes v. Kapner , 116 Pa. Super. 44 ( 1934 )
Everett Hardwood Lumber Co. v. Calhoun , 121 Pa. Super. 451 ( 1935 )