Margolin v. Franklin

270 N.E.2d 140 (1971)

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Nature of the Case

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Facts

D entered into a retail installment contract with plaintiff Essco Motors to purchase a 1961 Ford Thunderbird. The price was $ 1,352.00 on which Ds paid $300.00 down leaving a balance of $ 1,052.00. To this balance, Essco Motors added finance and insurance charges in the amount of $ 604.00. Ds signed a note in the amount of $1,656.00. The contract called for 24 monthly payments of $69.00 due on the 15th of each month. Ds made $69.00 payments on February 15, 1966, March 15, 1966, April 25, 1966, May 23, 1966, June 24, 1966, July 26, 1966, August 24, 1966, September 27, 1966, and October 27, 1966. On November 26, 1966, P had the automobile repossessed and held a 'technical sale' as it was described by one of P's employees, because 'we can get the car back after it is sold.' Ds had actually called P and asked if the payment date be changed from the 15th of the month to the 27th of the month and alleged that they received a verbal affirmation of the changed agreement. In November, D testified she was in New Orleans about one week before the car was repossessed. The car was repossessed on November 25, 1966, from a parking spot in front of Ds' apartment. P brought this action against Ds to confess judgment on a promissory note. Ds petitioned to open and vacate the judgment by confession and counterclaimed for $1,500.00 by reason of P's fraudulent and wilful conversion of their automobile. The court entered judgment on the counterclaim in the amount of $921.00. P appealed. P contends the finding of the trial court as to a modification in terms of payment of the contract was not supported by the evidence.