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
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.; a third,
a half mile away at 1057 S. Olive St., and a fourth at 1015 S. Grand
Ave. Satellite sales offices were located in Northern California at
1519 Van Ness, San Francisco, and 2853 Broadway, Oakland.
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
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
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
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
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
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
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
“[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
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
“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
“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
“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
“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
“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
“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.
“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
“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
“It is so ordered.
“Finlayson, P. J., and Sloane. J., concurred.”
© 2004 Mark Theobald - Coachbuilt.com