Petition for rehearing denied February 6, 1934 ON PETITION FOR REHEARING (29 P.2d 516) Department 2. ON PETITION FOR REHEARING. PETITION DENIED. Counsel for appellant has filed a printed document designated as "Motion for Rehearing and Argument Supporting the Same", in which it is stated that the appellant "moves the court to grant a rehearing * * * and in support of said motion respectfully submits to the court the following reasons", followed by a general argument concerning the law relative to conditional sales contracts, especially with reference to the rights of the vendor when the vendee has failed to comply with the time essence provision of the contract. A brief in support of the motion has also been filed by several attorneys representing numerous finance and commercial concerns, as amici curiae.
Rule 25 of this court requires that applications for rehearing shall set forth, without argument, "wherein it is claimed the court has erred". This requirement has not been complied with, in the motion *Page 681 before us. When there is no compliance with this rule, it is extremely difficult to summarize and pass upon the exact points attempted to be made by such a petition for rehearing. It is, however, apparent from a study of the briefs submitted that some of the important facts forming the basis for our former decision have either been entirely ignored or not given proper consideration by those seeking a rehearing. Those facts, briefly, are as follows: (1) When the conditional sales contract was entered into, it was understood that the vendee was to be given a credit on the first monthly instalment, due July 20, 1932, yet no attempt was made by the finance company to advise the vendee of the amount of this credit until more than three weeks after the payment was due, thereby preventing him, through no fault of his own, from complying strictly with the terms of the contract. (2) The vendee might have been led to believe, from the letters and notices which he received, that he had thirty days of grace after the due date, in which to make his monthly payments, and before thirty days had elapsed following the due date of the August payment the agent of the defendant corporation appeared on the scene, in the absence of the plaintiff, and upon the failure of those in charge of plaintiff's business to comply with his demand for immediate payment of both July and August instalments, removed the truck and the trailer. (3) Three days after the defendant had taken possession of the truck and trailer the acceptance company, owner and holder of the sales contract, telegraphed the plaintiff: "Three hundred forty-seven dollars past due your refinanced account. Must have full payment at once or take action protect our interest." The acceptance corporation sent a copy of the telegram to the defendant and on September 24 the defendant by letter acknowledged receipt *Page 682 thereof and, among other things, said: "Would advise yesterday we contacted Mr. Mathers and as we were unable to secure any money, we seized the truck and trailer and brought them into our shop."
In defense of its action in repossessing the truck and trailer the defendant introduced in evidence a letter to it from the acceptance corporation dated September 6, 1932, in which the acceptance corporation called attention to delinquent payments on the Mathers contract and stated: "Under the circumstances we will have to insist on this equipment being repossessed without fail, unless the account is brought completely up to date by payment of the above delinquencies, and also the note which matures on September 20 for the additional sum of $154.53. This payment must be made by September 20." The record fails to disclose, however, that the contents of the letter last above mentioned were communicated to the plaintiff, although the defendant at various times did write to plaintiff concerning the delinquent instalments, requesting payment.
It is apparent from the record, as above outlined, that the acceptance corporation had not, on September 19, 1932, when the defendant seized the truck and trailer, intended to take possession of this motor equipment until some time subsequent to September 20, otherwise it would not have written as it did to the defendant on September 6, nor later, on September 22, have wired the plaintiff demanding the past due payments. Just why the defendant should have written the acceptance corporation on September 24 that it had "seized the truck and trailer" on the previous day is not apparent, unless it had acted without the knowledge and consent of the finance corporation on September 19, in repossessing the truck and trailer. The defendant *Page 683 evidently did not, for some reason, care to advise the owner and holder of the contract of the exact date when it "seized the truck and trailer".
The view which we take of the case is that there is sufficient evidence to sustain the verdict and that no prejudicial error was committed by the trial court. This renders unnecessary a further discussion of whether or not the facts in the case are sufficient to constitute a waiver or estoppel on the part of the acceptance corporation.
The petition for a rehearing is denied.
BEAN, CAMPBELL and ROSSMAN, JJ., concur. *Page 684