American National Bank of San Francisco v. A. G. Sommerville, Inc.

The appeal in. this case presents for consideration the effect of certain stipulations in executory contracts of conditional sale and purchase of automobiles. The first acknowledges the receipt by the purchaser of the articles sold, and the second purports to be a waiver by the purchaser of the defense of'want or failure of consideration in the event of an assignment and transfer of the contract in good faith by the vendor. A rehearing was granted after decision and judgment (64 Cal. Dec. 393), for the reason that there seemed to be a misapprehension in the minds of the legal profession concerning the effect of the decision, this misunderstanding arising, perhaps, from the failure of the former opinion to sufficiently differentiate in the application of the doctrine of estoppel by contract and estoppel in pcds to the facts of the case. On reconsideration we adhere to the conclusions arrived at upon the former hearing.

The defendant, A. G. Sommerville, Inc., entered into two executory contracts of purchase and sale with the defendant and appellant Tomlinson, whereby the latter agreed to purchase from the former two automobiles with complete equipment for $3,900 each. Payment by…