Calhoun v. Universal Credit Co. , 106 Utah 166 ( 1944 )

I see no evidence to sustain the finding that the taking of the car by Sanders was with evil intent or that he knew that his act was wrongful and did it in bad faith. The contract was made on February 5, 1941. There was a waiver of strict performance by the appellant accepting payments after their due dates. Finally the appellant extended for a consideration the due dates of all the payments. This was not a waiver. This was a new contract fixing new due dates. Payments on their new due dates were not promptly met and again accepted after the date when they were due. Thus again the company may be said to have waived strict performance with the requirement of the new contract which pertained only to dates for instalment payments. Then in February, 1942, the company received the following letter:

"Due to my being inducted into the Army I am forced to terminate my payments on the automobile. I will be here in town for a few more days. So please send your field man to talk this matter over or advise what you would prefer doing."

It sent Sanders, its field man, to plaintiff's house. It was agreed that the plaintiff should have the opportunity to dispose of the car or refinance it. Sanders said February 7, 1942, was the date fixed for plaintiff's turning the car back to the Hunter Motor Company if he did not succeed in paying the balance owing. There was a conflict as to whether February 7th or any date was named. The court merely found that the plaintiff was granted "time to try to dispose of the auto or to decide whether he wanted to keep it himself." Since plaintiff's induction date was February 9, 1942, it seems quite likely that Sanders would want the matter determined before he left for service but granted that February 7th was not the date fixed there is nothing to show that Sanders did not honestly believe that it was. He went to plaintiff's home on the afternoon of February 7th and was told that plaintiff was not in but would return at 7:30 p.m. He returned at 7:30 and found no one home. He visited plaintiff's home again on February 10, 1942, and was told by plaintiff's sister that plaintiff was asleep. Sanders then told the sister that if the money was not paid "right away" he would take some action. Even though this message to the sister was not communicated to the plaintiff it shows that Sanders was certainly not acting in bad faith. One wonders how many times an agent must call and pursue a party whose payment is in default in order to adjust the matter. I have some doubt in this case whether under the circumstances, notice had to be served on the plaintiff that appellant would insist on strict performance. Where one party is in default and the other party is obliging him by agreeing to wait until a definite date or until such time as to enable him to try and refinance or sell, this is not the same as waiving strict performance by accepting payments after due dates. This constitutes an arrangement to give the defaulting party at his request a definite or a reasonable time to complete arrangements. When the definite or reasonable time elapses the creditor may pursue his rights under the contract. We held inSalt Lake Wet Wash Laundry v. Colorado By-Products Company,104 Utah 385, 140 P.2d 344, that it was not necessary in order to put in default another party who had a reasonable time in which to act that that party be given notice when the first party considered a reasonable time to elapse. I am not disagreeing with that part of the opinion because it may be that a reasonable time had not elapsed before February 16th when appellant repossessed the car. Certainly after all the calls on plaintiff and after Sanders was unable to find him in or reach him and after he, Sanders, had told plaintiff's sister that he must pay right away, when Sanders understood that the dead line of February 7th had already passed, Sanders could hardly have been acting maliciously or in bad faith when finally on February 16th he came and took the car. After he had it in tow but before leaving the premises he notified plaintiff that he was taking the car. That he took the car while plaintiff was sleeping on February 16, 1942, would not seem to indicate a knowledge of wrong doing. It was claimed that plaintiff had been sleeping before when Sanders came. If Sanders was under the impression that the parties had agreed on February 7th as the date by which the car would be turned back or the balance paid, and had still made several attempts thereafter to give plaintiff a chance, his action would seem consistent with exhausted patience. I see evidence of this but not of maliciousness and therefore agree that there is no evidence to support the verdict for punitive damages.

WADE, J., being disqualified, did not participate herein.