|
|
George R Bentel (1912-1919) later Reim-Thompson Co. (1919-1924) later
(1924-1930s) Robert Thompson Co., Los Angeles, California 607 Laughlin
Bldg.; 1238 S. Main St.; 1057 S. Olive St. (11th & Olive St.); 1015 S. Grand Ave.,
Branch sales office at 1519 Van Ness – San Francisco, CA; 2853 Broadway – Oakland, CA.
George R. Bentel was an early Los Angles automobile dealer who’s mainly
remembered today as the owner of the Ascot Raceway, an early West Coast dirt
race track. For a number of years Bentel campaigned a successful Mercer
racing team and during the mid-to-late teens created a number of
custom-bodied Mercer automobiles for wealthy Southern Californians.
George Roy Bentel was born in Pittsburg, Pennsylvania on July 2, 1876 to
Frank A. and Mary (Wolf) Bentel. After graduation from high school in 1892
he entered the Pittsburgh brokerage house of Henry Sproul & Co. He married
the former Harriet Chaney in 1897 and in 1900 the young couple moved to Los
Angeles, California where George established a brokerage house in the style
of George R. Bentel & Co., Stocks & Bonds.
In 1907 Bentel entered the automobile business as the West Coast
distributor of the Rainier and American Mercedes. Success in the field brought him the
Pacific Coast distributorships for the Simplex and Mercer automobiles in
1910.
Coleman & Bentel Co., another Bentel-controlled firm, became the official
Los Angeles Michelin tire distributor in 1912, the same year that Charles A.
Mackey, joined the Bentel organization as a partner.
After hearing about the success of Conover T. Silver in Manhattan, Bentel
set about disguising Mercer chassis in a similar manner starting in 1916.
Regular fenders and running boards were discarded in favor cycle fenders and
step plates. Shortened windshields and Victoria tops appeared on some models
as did rear-mounted spare tires stacked two high. Wire wheels appeared on
some vehicles while others included brass or nickel-plated disc wheel covers
(aka spats).
Motor World detailed the devices in a 1918 issue of the magazine:
“The disc is not a part of the wheel, but simply a plate that is
attached, one on each side. Besides keeping out dirt and grime, the highly
polished finish gives a decidedly scintillating effect to the wheels, when
in motion.”
The article also claimed that Bentel:
“introduced wire wheels to the Pacific Coast, was first to
build Victoria tops, was first to put discs on wheels, first to make tonneau
windshields, first to make a roller curtain top.”
In 1916 Bentel was appointed the West Coast distributor of the Jordan
Motor Car Company, but sales were short-lived as domestic automobile
manufacturers began experiencing material shortages due to the ramp up to
the World War.
Bentel responded by purchasing used chassis and re-fitting them with
updated coachwork and accessories. Many of these vehicles were represented
as being new, and Bentel was taken to court* on more than one occasion after
the owners of the vehicles discovered they had been had.
(*See lawsuit at bottom of page for an example.)
Regardless, Bentel’s creations proved popular with the stars of the
silver screen, who were now flocking to Hollywood in large numbers.
Bentel’s various agencies were located at various downtown Los Angeles
showrooms, his first was located in the Laughlin Bldg., Suite 607; the
second at 1238 S. Main St.; and the third, a half mile away at 1057 S.
Olive St.
Most of Bentel’s custom creations were built on Jordan, Mercer and
Simplex chassis, however, he built on whatever high-class chassis was
available. Bentel soon discovered that building automobile coachwork could
be just as profitable as selling new chassis and in 1917 he erected a
78,000 sq. ft. purpose-built 4-story body plant and showroom at 1015 S. Grand Ave.
For a number of years Bentel's body shops were located next door at 1035
S. Grand Ave. and once the new building was completed the facility was taken
over by the Leach Motor Car Co., the Los Angeles distributor of the Dort, King,
Premiere and Liberty automobiles. Bentel's new plant was located on the West
side of South Grand Ave., between West Olympic Blvd and West 11th St
(current zip code 90015) in downtown Los Angeles, only 3 blocks east of the
Staples Center.
Leach would go on to manufacture his own high class automobile, called
the Leach, or Leach-Biltwell, which was produced in Vernon, a Los Angeles
suburb, between 1919 and 1923.
In 1915 Bentel fielded a trio of Mercer-chassised racecars on the West
Coast, often entering a fourth California-badged Mercer that skirted a rule
limiting a team’s entry to three vehicles. A number of famous racers drove
for Bentel in the mid-to-late teens, including World War I flying ace Eddie
Rickenbacher.
Encouraged by the corresponding increase in sales of Mercer chassis at
his Los Angeles showroom, later that year Bentel formed a corporation to
take over the management of the 5/8 mile Ascot Park Raceway, a decades-old
horse racing track that had occasionally served as an early automobile
speedway.
The Speedway was featured in a small item published in the July 16, 1916,
New York Times:
“The Ascot Speedway is the only one of its kind in the world. Having been
converted from the old horse race course of that name. This was done by
eight weeks of rushed construction work last winter. The turns were banked
to a height of eleven feet, and then the entire course was paved. Because of
the “greenness” of this paving last winter ate up tires, But George R.
Bentel, Chairman of the Contest Committee at Ascot, this Fall will resurface
the track. In addition to the smoothing of the track surfacing, large
bleachers are to be erected because of the immense popularity wit which the
racing has been received in this section. Ascot is the widest course of its
kind, also the fastest, and its popularity has been heightened by the fact
that the cars are in sight all the time.”
A June 1917 issue of Motor Age included a picture of an attractive Bentel-built
Mercer speedster body similar to those found on his racecars that was
designed for both on and off-track motoring.
The August 15, 1917 issue of Motor West announced the
grand opening of Bentel’s new factory and showroom:
“Bentel Co. Occupies Its New Quarters
“Demonstration of the point of excellence reached in
the independent creation of motor car designs and remodeling on the Coast,
especially as regards original ideas in automobile trimming, tops,
upholstery and body painting, is seen in the occupation of its new
four-story building by the George R. Bentel Co., Los Angeles. The new
structure is located at 1015 S. Grand Ave. and contains a total floor area
of 78,000 square feet. It is claimed to be the largest single building west
of New York devoted to so many phases of the automobile industry. Not only
will the mechanical departments of the company, which outgrew their recent
quarters at 1035 S. Grand Ave.. be located in the new building, but the
sales agency for Mercer and Jordan cars, formerly at Eleventh and Olive
Sts., will occupy space in the new home. A large service department will be
added to and will reinforce the sales agency department, completing the
concentration of Bentel activities under one roof.
“Special machinery and facilities for motor car
designing, building and remodeling have been installed on every floor of the
building. So complete is the equipment that the company claims that it can
assemble an entire car in its new quarters.
“Car chassis will be cleaned through the use of live
steam and this method is also employed in the painting department to remove
previous coats. The service department contains several ingenious devices.
One of these locates the rattles in motor cars by a series of bumps, which
brings out every squeak and rattle in a car with more effective ness, it is
claimed, than miles of hard road driving.
“In the mechanical department the first of the new
22-140 series Mercer cars are in process of completion. These are stock cars
capable of developing a speed of 100 miles an hour. The third floor is given
over to the trimming department, where tops and upholstery designs are
planned and carried out. In the rear are the wood shop and body departments.
In the latter department an entire body may be built, which then moves into
the front end to receive its upholstery and top. On the fourth floor is the
painting department, which includes four steam-heated and sealed varnish
rooms. Much time is saved by the drying-room process which not only
eliminates dust but saves much time for the owner of the car. The big
hammers and heavy machinery are located in the basement.”
Bentel Exhibited both Mercer and Jordan chassis at the winter 1917/1918
Los Angeles Auto Show.
November 15, 1917 Motor West:
“Bentel to Concentrate on Body Plant.
“George Bentel, Los Angeles, Cal., Mercer dealer, will concentrate his
energies on his large automobile body building establishment and make a
partial retirement from the car sales agency field. The new Bentel body body
building plant on Grand Ave. has already become famous throughout the entire
Coast territory for the strikingly original and artistic bodies it has
turned out for Western customers. The company will continue to handle the
Mercer car, with which it has been identified for several years.”
February 1, 1918 Motor West:
“New Top Factory in Los Angeles.
“The reputation of Los Angeles for distinction and originality in
automobile body and top building is to be further enhanced by the opening
of the Dustin & Roman Auto Top Co. in that city. The company has been
organized by G. F. Dustin, formerly connected with the George R. Bentel
shops. Factory quarters and showrooms have been acquired at Eleventh and
Figueroa streets, and, according to Dustin, the new automobile top factory
will be one of the most modern of its kind in western America.”
In late 1919 Bentel sold his S. Grand Ave, body plant to the newly
organized Reim-Thompson Company (1919-1924) as reported in the February 1,
1920 issue of Motor West:
“Bentel Business in New Hands.
“The Bentel Shops in Los Angeles are now owned by a new corporation, the
Reim-Thompson Co., headed, by George F. Reim, for eleven years Cadillac
dealer in Omaha and a pioneer in the industry, dating back to 1899, and
having been connected also with the White and Packard. Associated with Mr.
Reim is R. M. Thompson, vice- president and treasurer, who for years has
been a district representative of the American Car Co., manufacturing street
cars. He will give all his time to the new company and will have charge of
sales.
“Financial backing of the new concern is said to be unusually strong. The
four-story Grand Avenue plant's facilities for fine body building will be
greatly improved, and manned by specialists in refinishing, repainting and
manufacture of special bodies. The special top business will be enlarged.”
The July 14, 1910 issue of The Automobile recorded Reim’s acquisition of
the Omaha Cadillac franchise:
“George F. Reim, formerly with R.R. Kimball, has secured the Omaha
Cadillac agency and formed a partnership with W.R. Drummond to handle the
Cadillac car. The new firm will occupy the garage of C.F. Louck at 2550
Farnum Street.”
Between 1919 and 1924 Bentel devoted most of his efforts into promoting
the Ascot Speedway which at the time was one of the premiere dirt racetracks
in the country. In January 1924 Bentel organized a new firm, the Ascot
Speedway Association to oversee the business activities of the track which
was renamed the New Ascot Speedway.
Apparently Ascot was profitable, so profitable in fact that Bentel
allegedly made off with the $40,000 1924 Thanksgiving Day purse. On December
7, 1924, the Los Angeles District Attorney threatened legal action against
Bentel as follows:
“Ascot Speedway Board Is Accused
“Los Angeles. Dec. 6.—Officials of the Ascot Speedway Association must
produce $40,000 prize money by Monday or face a felony charge of obtaining
money under false pretenses. This was the ultimatum handed President George
Bentel today by Deputy District Attorney Clark, following complaint of eight
drivers in the Thanksgiving Day race that they were not paid amounts
promised them.”
It was not Bentel’s first brush with the law. He had been in court many
times during his brokerage career, and was sued numerous times while he was
in the automobile sale business. However the $40,000 Ascot debacle was small
change compared to the $2.5 million dollar scandal that unfolded soon
afterwards.
During the late teens Bentel became involved in the business affairs of
Oliver Morosco, a Los Angeles-based theater chain owner, and the founder of
the Oliver Morosco Photoplay Company, an early movie production company that
was merged into Famous Players-Lasky Corporation in 1916.
The pair formed the Morosco Productions Company, a California motion
picture concern and in 1921 formed a real estate development company called
the Morosco Holding Company. Morosco Holdings had grand plans for 100-acre
Disneyland-style entertainment park called Moroscotown, its principal
features consisting of villages representing places in England, France,
Germany and other continental countries.
Morosco supplied the 100-acre tract and invested well over of $2.5
million of his own money in the project. Bentel spearheaded the financing
and development of the project, serving as the firm’s vice-president.
During late 1924 it became apparent that the scheme was a giant stock
swindle and in 1924 the partner’s were indicted for mail fraud. Although
Morosco was cleared of all charges, Bentel and two partners, Benjamin Leven
and C. Amos, were found guilty of using the mails to defraud investors in
1926.
Despite a decades-long career that was highlighted by his scandalous
business dealings, Bentel remained in Los Angeles and continued to dabble in
the picture business, serving as an outside production company for Columbia
Pictures and others during the late Twenties. Bentel survived the
Depression, forming George R. Bentel Associates at 6606 Sunset Blvd.,
maintaining a listing in the Motion Picture Almanac into the 1940s.
The only surviving piece of Bentel’s numerous automotive achievements is
a 1918 patent for an automobile windshield, US pat # 1345061, that he
assigned to Reim-Thompson after it was issued on July 29, 1920.
By that time Reim-Thompson Company had built up a considerable business
repainting and refinishing cars for an ever-increasing number of Los
Angeles-based automobile dealers. They also installed convertible tops as
well as the increasingly popular all-weather California top. Although they
built an occasional custom body, they had little use for their first floor
showroom which was leased out to various Los Angeles auto dealers as
evidenced by an item in the January 15, 1920 Motor West:
“Pending the completion of their new building on Pico St. near Figueroa,
Maxwell & Hoffman, Studebaker dealers, have located in the Bentel Bldg. at
1015 S. Grand Ave.”
Reim-Thompson was also the first employer of Wellington Everett Miller, a
well-known Los Angeles-based automobile body designer.
W.E. Miller was born in Los Angeles, California on November 19, 1904 to
William Edgar and Emma Lewis (Lyttle) Miller. He became enamored with
automobile design while visiting the 1920 Los Angeles Auto Salon where he
was particularly attracted to a new Lincoln on the stand of the Walter M.
Murphy Co.
Miller decided to become an automobile designer and entered into a course
of mathematics and mechanical drawing, taking an after school job with Reim-Thompson
as a shop assistant.
In April of 1921 the 16-year-old went to work for Walter M. Murphy as a
draftsman’s assistant to the firm’s two delineators, George R. Fredericks
and Charles Gerry. Miller was hired full-time by Murphy after graduation and
eventually became the firm’s chief designer.
Miller and another Murphy delineator named John Tjaarda moved to
Rochester, New York in April, 1926 to serve as Locke & Company’s body
designers, and when that firm went bankrupt, he returned to Murphy for a few
short months after which he was hired as a body designer by the Packard
Motor Co. in 1928.
Miller married Martha Katherine Gibson on October 10, 1936 and to the
blessed union were born three sons; Wilton Everett, David Gibson and Marc
Edsel Miller.
After his April 6, 1983 death as the result of a massive stroke suffered
one month earlier, W.E. Miller’s extensive portfolio and automobile
reference library was acquired by the Nethercutt Collection in Sylmar,
California.
In 1924, Reim sold his share in the firm to his partner who reorganized
it as the Robert Thompson Company.As did its predecessor, the Robert
Thompson Company specialized in refinishing and repainting and eventually
got into the commercial body business.
They built an occasional custom body during the late twenties and early
thirties and are also known to have built a number of funeral coaches on
Cadillac chassis. One attractive example featured an attractive black
exterior with matching black headlights and radiator shell.
Filed on Jun 27, 1928, US design patent #78,732 (design patent for a
florist's body) was granted on Jun 18, 1929 and issued to Harold Reeve
Darling and Harry Sigard Albertson, of Los Angeles, who assigned it to
Robert Thompson Co.
The following 1919 court case provides a great deal of insight into
Bentel’s business practices, as well as giving us an idea of how the poor
reputation of the used car dealer developed over time.
“[Civ. No. 2872. Second Appellate District, Division Two.—January 29,
1919.]
“F.A. KNIGHT, as Administrator, etc., Respondent, v. GEORGE R. BENTEL et
al., Appellants.
“Sales — Action By Purchaser To Recover Money Paid — Finding Supported By
Evidence.—In this action by the purchaser of an automobile to recover money
paid on account of the purchase price on the ground that the car delivered
was second hand, and not a new one as contracted for, the evidence is held
sufficient to support findings for the plaintiff.
“Id.—Appeal — Objections To Evidence.—Objections to evidence on grounds
advanced for the first time in the appellate court cannot be considered.
“Id.—Fraud And Deceit.—Statements of a representative of the seller held
to constitute fraud and deceit.
“Id.—Credibility Of Witness — Conflicting Testimony.—Where the testimony
of a representative of the defendant was evasive and elusive, the trial
court was justified in resolving a conflict in favor of the plaintiff.
“Id.—Fraudulent Representations And Matters Of Opinion — Non-
Applicability Of General Rule.—The rule that where parties do not occupy
confidential relations to each other, one of them cannot predicate fraud on
the' statement of the other as to facts equally known to both or upon
statements which are merely expressions of opinion, has no application to
the case at bar, in which the agent of the defendant falsely represented
that the car was a new car, and falsely represented that a new contract
which he induced the plaintiff to sign was a similar contract to one
previously signed by her.
“To.—Intent To Deceive — Presumption.—Under section 1963 of the Code of
Civil Procedure the court was not bound by the defendant's testimony that he
did not intend to deceive.
“Id.—Delivery And Acceptance Of Goods—Right To Rescind—Waiver. Where the
plaintiff accepted an automobile in the evening relying on defendants' false
representation that it was new, and without an opportunity for full
examination drove it some distance, but upon the discovery next morning of
the fraud returned the car and demanded the return of her money, her right
to rescind was not -waived.
“Id.—Interest—From What Time Recoverable.—In this action to rescind a
contract and recover money paid under it, nothing was due until rescission
or demand for repayment, and interest prior to that time was not allowable.
“APPEAL from a judgment of the Superior Court of Los Angeles County. John
M. York, Judge. Affirmed.
“The facts are stated in the opinion of the court.
H. C. Millsap for Appellants.
F. A. Knight for Respondent.
“THOMAS, J.—This is an action by Ellen Stuart Bentley, who, since the
institution of the action, has died, and which action is now being
prosecuted by F. A. Knight, who, by proper order heretofore made and
entered, has been substituted as plaintiff in place and stead of said Ellen
Stuart Bentley, against the defendants herein. From the record in the case
it appears that on January 24, 1914, the said Ellen Stuart Bentley signed an
agreement with the defendants whereby she agreed to buy from the defendants
a Mercer automobile, for the total price of $3,150, payable $850 at the time
of the signing of the contract (payment of which was acknowledged therein),
$750 on delivery of the car (which car was to be delivered March 17, 1914),
and the balance of the purchase price to be paid in three equal monthly
installments. A clause was added to the agreement whereby the defendants
were to sell for the plaintiff a Metallurgique car, which the said Ellen
Stuart Bentley then owned, as a condition of the contract.
“Some time between the signing of the agreement and the thirteenth day of
May, 1914, the defendants sold Mrs. Bentley's Metallurgique automobile for
$1,250, which they credited on her contract for the Mercer car as of May 14,
1914. The Mercer car was not delivered on March 17th, nor was any car
delivered to her by the defendants herein until May 13, 1914. On May 13,
1914, Mrs. Bentley went to the place of business of the defendants, about
dusk, was taken for a short ride in the machine to see how it ran, and,
without close examination of the car, accepted the same. The car had no seat
on the running-board, as provided for in said agreement, and was not of the
color called for—"which could be seen at a glance"—but a memorandum was
given the said Mrs. Bentley by defendants whereby they, the defendants,
agreed that these changes were to be made later. The next morning, upon a
closer examination of the car, Mrs. Bentley discovered that it was a
second-hand car and had been used and run a great deal. She immediately, on
the same day, to wit, May 14, 1914, drove the car back to defendants' place
of business, told defendants she refused to accept the car, and demanded the
return of her money. Defendants refused to comply with this demand, but told
her that they would order a new car. She refused to buy a new car from them,
and left the Mercer with the defendants.
“Upon making these discoveries, Mrs. Bentley served a notice of
rescission of the contract, signed by her, and sued for the return of her
money. When the answer of defendants to that suit was filed they set up an
entirely different contract as having been executed by the plaintiff on the
day the car was delivered to her, to wit, May 13, 1914. She then demanded an
inspection of the original of said document, and claims to have then
ascertained, for the first time, that when the car was delivered to her she
had signed an entirely different document, which was a "lease" of the
automobile. She then remembered the circumstances of having signed the
document, and claims that her signature thereto was obtained by a fraud and
a trick of the defendants. Mrs. Bentley then dismissed her first suit and
served a new notice of rescission of the first agreement and the second
document just referred to, and filed her complaint in this action. It is in
four counts: The first for money had and received; the second based on
failure of consideration; the third based upon partial failure of
consideration, and the fourth for the recovery of the money and the
revocation of the lease, upon the ground that her signature to the lease was
obtained by fraud and trick: perpetrated by the defendants. No copy of
either of said instruments was given by defendants to plaintiff. Judgment
was given for the plaintiff for the recovery of her money, and defendants
have appealed to this court for a reversal of that judgment.
“It was stipulated at the trial that the defendants had been paid by the
said Mrs. Bentley the sum of two thousand six hundred dollars, on the
following dates: October 27, 1913, one hundred dollars; January 24, 1914,
$750; May 14, 1914 (proceeds from the sale of the Metallurgique car),
$1,250, and May 14, 1914, five hundred dollars.
“Defendants challenge the sufficiency of the evidence to support the
findings of the trial court. We are satisfied from a careful examination of
the record in this case that the evidence abundantly supports the findings
of the court. The witness Ruddle is the representative of the defendants
with whom Mrs. Bentley had almost all of her business dealings in connection
with the purchase, etc., of the car in question. There is no dispute as to
the fact that the contract, Plaintiff's Exhibit No. 1, was signed by Mrs.
Bentley on January 24, 1914, and that by the terms of that agreement the
said Mercer car was to be delivered on or about March 17th of the same year.
This was not done. But when Mrs. Bentley heard, some time in May, 1914, that
the car had arrived, she went to the place of business of the defendants,
which, according to the record, was on May 13, 1914, and about noon of that
day. At that time she was told that the car was not ready for delivery; that
they were putting on some wire wheels, etc., and agreed to have it ready for
delivery at about 4 o'clock that afternoon. It was not ready for delivery,
however, until about 5:30 or 6 o'clock. After looking the car over from the
outside, without making anything that might be considered an "examination"
of it, she was taken out, as has already been set forth herein, for a short
ride. She then paid five hundred dollars in cash and took the car with her
to Long Beach that night. Before this took place, however, there was some
talk about payments, and the witness Ruddle said he would arrange it to suit
her, and, as she understood it, and as shown by the evidence, the contract
of January 24th was modified only as to the amounts of payments and the time
when the balance due on the car should be paid. Mrs. Bentley says that Mr.
Ruddle said to her, "Mrs. Bentley, here is a similar contract to the one
which you signed previously, only it will make the payments easier for you,
and according to your request." Mrs. Bentley further says that she looked
over and read that portion of the same as to payments and accepted Mr.
Ruddle's word that it was a "similar contract," and, in answer to a question
from the court as to whether she relied on anything else besides that,
answered that she did not. In view of the record here, we feel that the
attorney for Mrs. Bentley in this case, when writing to defendants under
date of May 15, 1914, was correct when he said that their "methods of
dealing with Mrs. Bentley in this matter have been so outrageously
unbusinesslike and unfair."
“There is no conflict in the evidence that Mrs. Bentley was buying a new
car, nor is there any conflict in the evidence that the defendants
represented to her that they were selling her a new car, and that the car
delivered to her on May 13, 1914, was such a car. We are of the opinion that
it will not be seriously contended by defendants and appellants here that a
car with the "enamel on self-starting lever worn off; dent in bottom of
radiator, cut by shock absorber; front of dash dented in, and paint on same
knocked off from raising and lowering hood; molding around top of doors and
dash showed weatherworn; paint and varnish off the same; right front fender
had been bent clear across; where back fender was attached to running board
was split, and showed it was an old break—rusted, and had appearance of
having been done some time; tool-box lid dented up from inside by loose
objects carried in the same; water manifold on motor rust- eaten, indicating
age; magneto shaft on motor pitted by rust; front axle showed signs of
having been heated to straighten; one of the steering knuckles showed signs
of having been heated and straightened; there was about a one-sixteenth inch
play in the front spindle; hub cap had been dented in and straightened out;
spark and gasoline control levers above steering-wheel were battered up,
showing the}' had been removed from car; very rotten job of painting—black
paint spattered on car from striping; stripes did not lap each other;
varnish on car was so green it would leave the imprint of hands where
touched; radiator was loose on car," can be properly designated a new car.
The quoted portion of the foregoing statement is taken verbatim from the
evidence in the record, and it stands without contradiction.
“It also appears in the record, without conflict, from the testimony of
the witness Tisdale, that he, Tisdale, found Mr. Bentel, one of the
defendants, "in his office, and asked him when the car would be ready for
delivery, and he said, 'I would like to have a day or two longer on the
car,' and said there were several things he wanted to have fixed about the
car before he delivered it; and asked me if I thought Mrs. Bentley would be
willing to let him have this extra time, and I told him I did not think she
would. Then he said he would have the work rushed through, and that Mrs.
Bentley could have the car at 4 o 'clock P. M. the same. day, and that any
time she brought the car back they would equip it according to
specifications; the mechanics at that time were putting wire wheels on the
car, and the wheel racks for the spare rims." It is obvious, therefore, that
not only was it known to Ruddle, the representative of defendants, but that
also one of the partners himself knew the condition of the car to be as
already hereinbefore sot forth.
“It also appears from the evidence that the next day, after discovering
said defects in the car, Mrs. Bentley, together with her chauffeur, Tisdale,
took the car back to defendants and left it with them. From the record the
following significant facts appear: "Mr. Ruddle and Airs. Bentley and
myself, after we got to Los Angeles, went over to see Mr. Bentel, and there
the following conversation took place: Mrs. Bentley told Mr. Bentel that
there was the car; and he asked her what the trouble was, and she proceeded
to show him the defects of said car. Mr. Bentel said that these were due to
the severe test that the factor}' had put the car to; and Mrs. Bentley said
she did not think a reputable company like the Mercer Company would allow
such defects to get by their inspectors; and also told him the car showed
signs of being used pretty hard, and that she refused to accept the car
under any conditions whatever. Then Mr. Bentel offered to wire the factory
for a new car, and for one that would come up to the specifications. Mrs.
Bentley refused this offer, saying, 'You have been dishonest with me about
this car, and I am not going to give you a chance to be with another.' She
asked Mr. Bentel to refund her money she had paid on the car; Mr. Bentel
refused to refund the money, but told her that he would put the car in the
show window and try to sell it for her, and if he could he would return the
two thousand six hundred dollars. Mrs. Bentley told him it was defendants'
car, and that they had not lived up to their contract, and that she did not
want anything more to do with it, excepting to get her money she had paid on
it. Mrs. Bentley told Mr. Bentel that she would give him ten days to refund
the money, and if he did not do so she would have to enter a suit against
him for it."
“We might say in passing that said statement made by Mr. Bentel (the
quotation just made) remains in the record without contradiction. The
statement that the defects above set forth were "due to the severe test that
the factory had put the car to" in our opinion is hardly worthy of serious
consideration. Had there been any conflict in the evidence, the statement
being so unreasonable, the court would have been, we think, justified in
disregarding it entirely.
“As to alleged errors of law occurring on the trial, we content ourselves
with the general statement that, assuming, for the present purpose, without
so holding, all of the specifications of error to be well taken, on the face
of the record they show that the defendants were not prejudiced thereby.
Whatever point might have been made at the time was cured by evidence
furnished on cross-examination. (Hill v. McCoy, 1 Cal. App. 159, [81 Pac.
1015] ; Kellam v. Erode, 1 Cal. App. 315, [82 Pac. 213]; Bergtholdt v.
Porter, 114 Cal. 681, [46 Pac. 738].) The point that rulings of the court,
to which exceptions 2, 3, and 4 were reserved, were error, because the
questions called for mere conclusions of the witness, and not for a
statement of fact, is not well taken, because this objection was not
advanced in the trial court and appears in this court for the first time. (Watrous
v. Cunningham, 71 Cal. 30, [11 Pac. 811]; People v. McCwley, 45 Cal. 146;
People v. Bishop, 134 Cal. 682, [66 Pac. 976].)
“The witness Ruddle knew about the contract of January 24, 1914; also of
the so-called lease dated May 12, 1914, and of the memorandum given to Mrs.
Bentley. If, therefore, the making of the statement that Plaintiff's Exhibit
No. 2 was "similar to the contract" theretofore, and on January 24, 1914,
made, except as to the matter of payments, the delivery of the car with the
defects already referred to, and telling Mrs. Bentley that it was a new
car—and many other statements and acts not necessary to refer to further—do
not constitute fraud and deceit, then we are unable to know what kind of
case it would be necessary to present in order to establish that fact.
“The defendants' case relied almost entirely upon the testimony of the
witness Ruddle. Where there was any conflict between his testimony and that
of plaintiff's, upon any material point, we are of the opinion, from an
examination of the record in this case, that the court was justified in
resolving the conflict in favor of the plaintiff. The testimony of the
witness Ruddle was very unsatisfactory. It was evasive and elusive and docs
not have the earmarks of the genuine ring about it. (Code Civ. Proc., sees.
1847, 2061.)
“There is no doubt at all that, as appellant argues, "where the parties
to a contract for the sale of personal property do not occupy confidential
relations to each other, one of them cannot predicate fraud on the statement
of the other as to the law applicable to facts equally well known to both of
them, nor upon statements which are but expressions of opinion." The cases
cited by appellants support that contention. But these do not apply to the
case at bar. It can hardly be said that the statement that the car here
referred to was a new car is one of opinion, or that Plaintiff's Exhibit No.
2 was a "similar contract" to the one signed January 24, 1914, excepting as
to payments—particularly in view of the testimony of Ruddle in that respect.
In the first case cited—Rheingans v. Smith, 161 Cal. 362, [Ann. Cas. 1913B,
1140, 119 Pac. 494], —the court says: "Rheingans, therefore, had no
inducement, or right, to rely on statements of Smith, except as to facts of
which Rheingans wax ignorant, and which he had reason to believe Smith knew,
and except, possibly, as to the law based on facts of which he had reason to
believe Smith's knowledge was greater than his own.'' This applies with
great force to the facts in the case at bar.
“The appellants contend that there was no intention on the part of
defendants to deceive. If the court is bound by the defendant's testimony
that he "did not intend to deceive," then the cases cited would apply. But
under the facts in this case we think they are not in point. (Code Civ.
Proc., sec. 1963.) Here the actions of the defendants speak so much louder
than what they said to Mrs. Bentley, that equity will not listen to their
present contention.
“Appellants contend that there was no claim made in the pleadings, and no
evidence offered on the trial, that Plaintiff's Exhibit No. 1 was induced by
fraud; and further, that even though the court found that Exhibit No. 2 was
obtained from Mrs. Bentley by fraud of defendants, and the cancellation and
rescission of the same actually had, that this did not authorize the court
in granting judgment for plaintiff. Appellants urge, in support of this
claim: (1) That Mrs. Bentley examined the car; (2) That defendants in no way
prevented her from making as full and complete an examination of the car as
she desired; (3) That after examining same she found that the car did not
comply with the contract; and (4) That after such examination, and with full
knowledge of non- compliance with the contract, she accepted and used the
car. There is no merit in this contention. The answer to it is that she took
the car to Long Beach relying upon what the defendants said and agreed to
do, as set forth in Plaintiff's Exhibit No. 3. At that time no examination,
which can rightfully be called such, had been made. The next morning, which
was the first opportunity Mrs. Bentley had to make an examination, an
examination. was made, and the result was the discovery that defendants had
perpetrated a colossal fraud upon her, viz., that the consideration had
failed—partially, if not altogether; and she did, immediately upon such
discovery, what any sensible person would do under the circumstances
-—returned the car and demanded the return of her money. (Civ. Code, sec.
1689; Marriner v. Dennison, 78 Cal. 202, [20 Pac. 386].) No further
authorities are considered necessary to support our contention here.
“It is further urged by appellants that Mrs. Bentley had waived her'
right to rescission by using the car after ascertaining that it failed to
meet the requirements of the contract. That is a correct statement of the
law, but it does not apply here. There is nothing to the point. The car was
returned immediately—the same day that the discovery was made. This
satisfies the statute. As to rescission, the record here shows that the
requirements of the sections of the Civil Code have been fully complied
with. (Civ. Code, sees. 3406, 1691; United Motor Co. v. Callander, 30 Cal.
App. 41, [157 Pac. 561].)
“Appellants contend that the allowance by the court to plaintiff of
interest on payments made by Mrs. Bentley from the date upon which said
payments were made is error. This point is well taken. (Hayt v. Bentel, 164
Cal. 680, [130 Pac. 432].) The law awards interest on money only from the
time it falls due, unless otherwise specifically provided for. (Civ. Code,
sec. 1917.) "Until rescission, or demand for repayment, nothing was due, and
interest was not allowable." (Hellman v. Merz, 112 Cal. 661, [44 Pac.
1079].) The record here discloses the fact that notice of rescission was
given May 14, 1914. It follows, therefore, that any interest allowed for any
period on any portion of the money paid before that time was not legally a
permissible charge.
“We believe that the record in this case justifies us in holding that had
the trial court arrived at any other judgment than one in favor of the
plaintiff, as herein stated, it would have presented one of those
inexcusable miscarriages of justice which tend to bring courts into
disrepute, and to shake men's faith in the administration of the law. In our
opinion, with the single exception noted, the findings are fully supported
by the evidence; and there are no other errors of law appearing in the
record needing our consideration.
“The cause is remanded, with direction to the trial court to modify the
judgment by deducting from the amount recovered all sums shown by the
findings to have been allowed as interest for any period prior to the
fourteenth day of May, 1914, the date of notice of rescission; and as so
modified, the judgment shall stand affirmed.
“It is so ordered.
“Finlayson, P. J., and Sloane. J., concurred.”
© 2004 Mark Theobald - Coachbuilt.com
|
