Brown v. Doug Griffith Dodge City, Inc.

Gilbert, C. J., delivered the opinion of the Court. This appeal arises under a Consumer Protection Law originally enacted in Maryland by Laws 1941, Ch. 851 and codified as then Md. Ann. Code art. 83, § 111. We are asked to answer two questions, namely: 1) Did the buyers of a motor vehicle sold to them on a Conditional Sales Contract receive an exact copy of the contract signed by the seller? 2) Does the hand printing of the name of the seller on a line designated "Type Seller’s Name” constitute the signature of the seller? — THE FACTS — William Joseph Brown, one of the appellants, 1 purchased a 1978 Dodge Pick-up truck from the appellee, Doug Griffith Dodge City, Inc., trading as "Doug Griffith Dodge City Honda.” The truck sold for $10,142. Brown was allowed $1,514 as a trade in on a 1977 Honda.

The Dodge was financed over a period of 48 months at $286.64 per month. The deferred purchase price, including credit life insurance and health insurance, taxes and transfer costs totaled $15,312.72. ⁶⁸⁹ Inasmuch as William Brown’s credit rating was "weak,” he was required to have his parents act as guarantors. The three Browns executed, in quadruplicate, the Conditional Sales Contract on May 3, 1978. The Browns received the third, or yellow copy, of the contract.

The "Conditional Sales Contract” used by the appellee was printed in blank and bound at the top in sets of four copies with carbon paper inserted between the copies. The first or white colored copy was designated in red print "BANK COPY,” the second, blue colored copy was also designed in red print, "BANK COPY,” the third, a yellow colored copy, was styled in red ink as the "CUSTOMER’S COPY,” and the fourth, a pink colored copy was entitled "DEALER COPY.” The designations of the copies appeared at the foot of the obverse side of each of the four leaves constituting the set. The following is the pertinent part of the contract received by the Browns: The blue or "Bank Copy,” as well as the pink or "Dealer Copy” contained additional information on the line above the printed legend "Seller’s Signature” and on the line above the words bearing the legend "Type Name and Title.” Mr. ⁶⁹⁰ Thomas E. Saunders, the then Sales Manager of the appellee, signed his name "T.E. Saunders” on the line for the Seller’s signature and printed "Thomas E. Saunders S/MGR” on the line where name and title was to appear. 2 The contract, on its face, was assigned "to The Equitable Trust Company in accordance with the terms of the Assignment on the reverse side” of the contract, "subject to full recourse . .. unless checked and initialed on the reverse side hereof.” The Bank’s copy and the Dealer’s copy are "checked and initialed.” Each of those copies bears the initials "TES.” William Brown made eighteen payments on the truck, for a total of $5,159.52. Of course, those payments were in addition to the "down payment” of $1,554.

The vehicle was repossessed by Equitable, who sold it at public auction. The sale resulted in a deficiency of $3,311.60, which had not been paid at the time of trial in the instant case. All three appellants 3 sued Doug Griffith Dodge City, Inc., in the Circuit Court for Carroll County. The Browns’ declaration alleged that the conditional sales contract between them and Doug Griffith Dodge City was not executed by the defendant and was, pursuant to the Md. Com.

Law Code Ann. § 12-605 (1975), null and void. The matter was heard non-jury. In testimony, Thomas E. Saunders disclosed tliat his duties as Sales Manager for the appellee were "[t]o oversee the Sales Department, contracts, bill of sales [sic], supervise.” Mr. Saunders said that he was required to approve all contracts, and that he was authorized to sign the contracts on behalf of Doug Griffith Dodge City, Inc. Saunders, in describing the "general procedure,” related that "a bill of sale was made up .. ., the order, and that would be approved by myself and the customer. Once that’s signed, the financing was available, then a contract was drawn up by the finance man ⁶⁹¹ ager.

The parties involved would sign it, it would be brought to me, I would sign it, then it would be given to the customer, his copy, and we kept a copy, and a copy went to the bank.” [4] Saunders then told the trial judge that the same practice was used in the matter sub judice. He testified that the contract, including the acknowledgements at the end of the obverse side of the contract, was signed by the Browns before the contract was taken to him for signature. Mr. Saunders said, "I won’t sign a contract until everybody else had signed it.” The witness remembered the Brown transaction because "it was the most expensive vehicle we had there, and that stands out in my mind. I remember that specifically.

It was red and black and had everything on it. — I think.” Mr. Saunders explained to the court that it was possible his signature did not appear on the "customer’s copy” because "the carbon paper could’ve been folded up or turned up before ... [he] signed it.” Saunders was not asked, nor did he explain why his initials do not appear on the reverse side of the "customer’s copy,” where carbon paper would play no part, and yet do appear on the "Bank” and "Dealer” copies. Mr. Saunders conceded on cross-examination that it was possible, but not probable, that the customer’s copy of the contract was removed before Saunders signed the contract on behalf of the appellee. Jim Laughter also testified on behalf of the appellee. Mr. Laughter was a salesman for Doug Griffith Dodge City, Inc., when the pick-up truck was sold to Brown.

He, too, remembers this particular sale because "in that time I just couldn’t comprehend selling a car for $10,000, and we were, you know, shocked.” The trial judge, in reliance upon In re Horvath, 1 UCC Rep. Serv. 624, a United States District Court Bankruptcy proceeding, decided in July 1963, declared that "We find as a fact that [the hand printed] words 'Doug Griffith Dodge City Honda’ constituted Defendant’s signature on the Condi ⁶⁹² tional Sales Agreement. There has, consequently, been no violation of § 12-605 of the Retail Installment Sales Act.” I. We commence our discussion by noting that there are two issues before us. If the trial judge is correct that the hand printed words "Doug Griffith Dodge City Honda” are a signature, the other issue falls of necessity.

Therefore, we shall first determine whether those hand printed words are a signature within the meaning of the statute. The appellee points to the trial judge’s fact finding and reminds us that in a non-jury trial, the judgment of the trial court is not to be set aside unless it is clearly erroneous. Md. Rule 1086. To arrive at the decision it made, the trial court was required to ignore the testimony of the appellee’s then sales manager to the effect that he approved all sales contracts and was authorized to bind the company.

There is no evidence within the record to support the trial judge’s finding that the hand printed words "Doug Griffith Dodge City Honda” was intended to be a signature. On the contrary, any fair reading of Mr. Saunders’ testimony reveals that it was his signature and his signature alone that consummated the sale. Moreover, the person who printed the appellee’s business name on the contract lacked authority to bind the company. The trial judge relied upon the definition of "signed” as found in the Commercial Law art. § 1-201 (39).

There it is said: "'Signed’ includes any symbol executed or adopted by a party with present intention to authenticate a writing.” He further found the Bankruptcy Referee’s reasoning in Horvath compelling. We think Horvath to be inapposite in the light of the testimony of the appellee’s sales manager as to the procedure followed by appellee in obtaining approval of a sales contract. Since the person who actually hand ⁶⁹³ printed the words "Doug Griffith Dodge City Honda” could not have bound the appellee, he could not have had the intent to use that verbiage as a symbol to authenticate the document. That task was left exclusively to Mr. Saunders, the sales manager.

We hold, therefore, that the trial judge was clearly erroneous in his fact finding. Additionally, the question of whether the hand printed name of the appellee constituted a signature is a question of law, not fact. In any event, the conclusion reached by the trial court was incorrect, and we reverse it.

II

The second issue posed by this appeal was not decided by the trial court inasmuch as it felt, we infer, that there was a signature on the contract, and an "exact copy” was furnished to the Browns. Ordinarily, this Court will not "decide any point or question which does not appear ... to have been tried and decided” by the trial court. Md. Rule 1085. We may, however, decide such a question when it is "necessary or desirable for guidance” of the trial court or for the purpose of avoiding the "expense and delay of another appeal.” It would serve no purpose to send this case back to the circuit court without a discussion of Commercial Law art. § 12-605.

Therefore, we shall invoke the power conferred upon us by Rule 1085 and turn our attention to the second issue. The General Assembly, by Laws 1941, Ch. 851, enacted a new section entitled "Retail Installment Sales” to the then Md. Ann. Code art. 83, Sales. Research Report No. 6, styled, "Retail Instalment 5 Selling” makes clear that the legislation was adopted for the purpose of protecting Maryland buyers from abuses by "a minority of sellers.” 6 The report was filed with the Legislative Council prior to the adoption of the statute by the General Assembly. ⁶⁹⁴ The Act then provided in pertinent part: "Retail Instalment Sales. 111. Form and Delivery of Instalment Sale Agreements.

(a) Every instalment sale agreement shall be evidenced by an instrument in writing containing all of the agreements of the parties. It shall be signed by all the parties before the seller delivers to the buyer any of the goods covered by the agreement. (b) At or before the time the buyer signs the instrument, the seller shall deliver to him an exact copy of it. If that copy was not executed by the seller, then unless the seller within fifteen (15) days after the buyer has signed, delivers him a copy of the instrument signed by the seller, the agreement and the instruments signed by the buyer shall be absolutely void without any action by the buyer, and the seller shall immediately refund to the buyer all payments and deposits theretofore made. 130 Waivers by the Buyer.

No act, agreement, or statement of any buyer in any instalment agreement, shall constitute a valid waiver of any benefit or protection under the provisions of this subtitle.” During the ensuing years, the statute survived with minimum changes, and it lives on in Md. Commercial Law Code Ann. § 12-605 (1975). It now provides: "(a) ... (1) At or before the time the buyer signs an installment sale agreement, the seller shall deliver to him an exact copy of it. (2) If the seller does not sign the copy, and if, within 15 days after the buyer signs the installment sale agreement, the seller does not deliver to the buyer ⁶⁹⁵ a copy of it signed by the seller, the installment sale agreement and the instruments signed by the buyer are void without any action by the buyer, and the seller immediately shall refund to the buyer all of his payments and deposits.

(b) .. . (1) Until the buyer signs an installment sale agreement and receives a copy of it signed by the seller, he has an unconditional right to cancel it and receive immediate refund of all payments and deposits made on account or in contemplation of it.” Former section