Clapp v. Orix Credit Alliance, Inc.

84 P.3d 833 (2004)

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Nature of the Case

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Facts

P is an independent truck driver. Laser Express, Inc., (Laser) is an interstate common carrier with whom P contracted to provide truck driving services. D is a commercial finance company. P decided to purchase a highway tractor. Laser agreed to act as an undisclosed agent for P. Laser entered into a conditional sale contract note that documented its installment purchase of the tractor. D is the vendor's assignee under the contract. Laser granted D a security interest in the tractor. The contract provided that “buyer shall not assign this contract note without the prior written consent of Holder.” P made the down payment toward the purchase of the tractor, and she also made all payments received by D on the contract. In May 1998, Laser, as assignor, and P, as assignee, entered into an assignment of contract (the assignment) by the terms of which Laser transferred its interest in the contract to P. D did not give prior consent to the assignment. (The terms of the relevant paragraphs of the assignment are listed in Fuller 8th.) In March 1999, the tractor was totally destroyed in a roll-over accident. P notified D of the loss and claimed the net insurance proceeds in excess of the balance due on the contract. D received $27,500 from the insurer for the loss of the tractor. After payments, a credit balance of $9,950.39 remained. On May 10, 1999, P delivered a copy of the assignment to D, and she reasserted her demand for payment of the net insurance proceeds. On May 12, 1999, D issued a check for the proceeds to Laser. P sued both Laser and D for conversion and money had and received. The trial court denied Ps motion for summary judgment, and it granted D's. P appealed.