I am constrained to dissent from the foregoing opinion. For the purpose of the dissent, a somewhat fuller statement of the case must be made. To avoid repetition, it will be more convenient for me to refer to the husband as plaintiff, rather than as an agent of the plaintiff. Passing for the moment earlier events, the plaintiff was the owner of a LaSalle automobile, which was insured against loss by theft or fire by the defendant insurance company. On January 10, 1930, the automobile was stolen and notification was given. On March 15 following, the stolen automobile was recovered by the insurance company. It was found in bad condition, but was nevertheless supposed by the insurer to be capable of repair and restoration to its former condition. The adjuster of the insurance company proposed to repair and return. The plaintiff agreed to such course, provided the restored condition was satisfactory *Page 1029 when restored to him. Later, a "Loss and Damage Agreement" was signed by the plaintiff. By reason of other events, the insurance company never did conform to the purported agreement made with the plaintiff and never did return the car to the plaintiff. The plaintiff, therefore, has sued upon the policy for the value of his interest in the car. The reason why the insurance company did not return or deliver the car to the plaintiff furnishes the complexities of the case.
The plaintiff bought this automobile on August 19, 1929, from the Cadillac Motor Car Company in Chicago. He bargained for the car at a price slightly in excess of $3,000.00, which amount was to include certain financing expenses and the cost of theft-and-fire insurance for the period of one year. A down payment was made by the plaintiff of $952.75. For the unpaid balance, eleven notes for $175.00 each and one note for $164.00 were executed, the first of them payable on September 20, 1929, and the others successively payable on the 20th day of each successive month. The notes thus executed to the dealer were immediately transferred by the dealer to the General Motors Acceptance Corporation. The function of the latter company was to finance the transaction. An insurance policy was issued by the defendant insurance company for a maximum of $2,286.00. The policy purported to insure the dealer, the acceptance corporation, and the plaintiff, as the interest of each might appear. The premium was charged to plaintiff. The first three installments due respectively September 20, October 20 and November 20 were paid by the plaintiff. On January 10, when the car was stolen, the plaintiff was in default upon the payment due December 20. He made no payment thereafter during the period of the car's disappearance. The deferred payments were secured by a conditional sales contract, which entitled the acceptance corporation to seize and sell the car at any time upon default. The measure of the interest of the acceptance corporation in the insurance was the amount of the deferred payments. During the period of disappearance of the car, the acceptance corporation notified the plaintiff that the loss of the car would not excuse him from prompt payment of the installments as they fell due, and demanded payment accordingly. For some reason, the defendant insurance company notified the plaintiff to the same effect andadvised payment. On March 17, the insurance adjuster, *Page 1030 Haase, had a conversation with the plaintiff, looking to a repair of the car and a return to the plaintiff in as good condition as before. This the plaintiff agreed to provisionally. In brief, he reserved the right to inspect the car after its return to him and that he find it satisfactory. In the latter part of March, Haase brought to the plaintiff a blank form of a so-called "Loss and Damage Agreement" and requested him to sign the same. The wife was at that time in California, and it became necessary for the husband to send the paper to her for signature. In due time, the plaintiff returned the paper to Haase by mail, duly signed by husband and wife. This was on April 5. It also appears that some time after the recovery of the car, Haase caused it to be taken to the repair shop of the Schroeder Auto Top and Glass Company for the purpose of repair. The repair bill amounted to $193.00, which was paid at some time by the insurance company. The excuse claimed by the insurance company for failure to return the car to the plaintiff was that the acceptance corporation took possession of the car under its conditional sales contract and sold the same in satisfaction of its debt, the sale being made to the Cadillac Motor Car Company, the dealer from which it was bought. The insurance company justifies such surrender on its part on the ground of the alleged superior right of the acceptance corporation to the possession of the same. The defendant predicates, upon the agreement between the plaintiff and Haase, a plea of accord and satisfaction. The question arises, what effect Haase's surrender of the possession and his failure to return the car had upon the defense of accord and satisfaction. He was not bound to surrender the possession upon mere request and without legal process. In that sense, his failure to perform the agreement relied upon, of accord and satisfaction, was voluntary. The surrender to the acceptance corporation was made on April 5, the very date on which the alleged written agreement was received from the plaintiff. The car was promptly sold to the Cadillac Motor Car Company at private sale. All this was done without notice to, or knowledge of, the plaintiff. The plaintiff pleaded that the seizure by the acceptance corporation and the surrender by the insurance company and the purchase by the Cadillac Motor Car Company were all done collusively and fraudulently as to him and to his injury. He pleaded that as to him in this transaction, *Page 1031 the purported three corporations were not separate entities, but were one and the same entity, representing one and the same ownership and interest. It is conceded by defendant, subject to objections, that the three Chicago Corporations are mere subsidiaries of the General Motors Corporation of New York; that the General Motors Corporation owns all the stock of the Cadillac Motor Car Company; that it likewise caused the organization of the General Motors Acceptance Corporation; that it owns all its stock and furnishes all its capital; that the General Motors Acceptance Corporation organized the General Exchange Insurance Corporation and that it owns all its stock; that all these corporations, including the parent corporation, have interlocking directorates; and that the managing officers of one are directors of the other. The purpose of the organization of the General Exchange Insurance Corporation was to insure cars, the purchase of which is financed by the acceptance corporation. These corporations have their separate functions, and are created as a part of the plan of organization of a big business. Such subsidiary organizations are legitimate within the scope of their proper functions. Nevertheless, when two or more of them deal with a third party who is ignorant of their community of interest, they may induce a reliance by such third party which would amount to a fraud upon him. In this case, we may assume that the acceptance corporation under its conditional bill of sale had very arbitrary rights; that it had the right to seize and to sell even at private sale. Perhaps it had a right to sell without notice. But in any event, it was bound to use its arbitrary power in good faith, if at all, and with reasonable diligence to the end that the reasonable value of the property might be realized in the sale. It became for the time being a trustee. It could not become a buyer at its own private sale. In this case, the acceptance corporation took the property without the knowledge of the debtor and sold it, so to speak, to a member of its own family — the Cadillac Motor Car Company. It was sold for $1542.00. The witness of the plaintiff testified that it was worth $2500.00 at the time it was stolen. The witness of the defendant testified that it was worth $1,675.00 at the time of its sale. It was actually resold by the Cadillac Motor Car Company for $1875.00. These are some of the facts which figure in the record. They may have no other legal bearing than on the *Page 1032 question whether they furnish an excuse to the insurance company for having failed to perform the alleged agreement of accord and satisfaction. If they do not, then the defendant has failed to prove performance by itself of the alleged agreement upon which it relies as a defense.
In the light of the foregoing preliminary statement, I proceed to a consideration of the assignment of error upon which reversal is based.
The assigned error is that the court erred in stating the measure of damages and that the verdict rendered of $1600.00 was excessive. Appellant's brief presents a computation to the effect that the maximum amount that could, in any event, be found for the plaintiff was $722.00. This computation was based upon the theory that in the distribution of the insurance fund, the acceptance corporation would be entitled to take the full amount of its debt, $1564.00, leaving a balance to the plaintiff of $722.00. On the other hand, the evidence shows conclusively that, if the plaintiff was entitled to recover at all, he was entitled to recover exactly $722.00, plus interest. I concede that the court did err in stating the measure of damages. The error, however, was curable by a remittitur. The jury found that the plaintiff was entitled to recover. Upon the record there could be no legitimate dispute as to the amount of the recovery. The court could have properly instructed the jury that the amount of recovery, if any, must be the sum of $722.00, with interest thereon. In such a case, our uniform practice is to give the appellee the opportunity to cure the error by remittitur. Such is the course that ought to be followed here. The case should be affirmed in the first instance, on condition that the plaintiff remit. If he remit, he should have his judgment affirmed to the extent of $722.00 and interest.
In my judgment, there is no other sustainable assignment of error in the record. *Page 1033