Cole, Adm'x v. Wilbanks

Per Curiam. Appellant is the administratrix of her son’s estate. He had purchased an automobile on conditional contract of sale by which he agreed to pay the automobile dealer, the seller, “or his assigns,” fifty-nine biweekly installments of $60.00 each and a final installment of $21.00 in return for conveyance of the title to the automobile, and the issuance of two insurance policies, one for fire, theft and $50 deductible collision insurance, and one of life insurance for a term of one year on the life of the buyer in an amount which would cover the balance on the purchase price of the car due and unpaid at the time of death. The contract, including title to the car, was assigned to a finance company.

About three weeks after the execution of the contract, the finance company wrote the car buyer two letters. The first, dated August 12, 1959, enclosed a fire, theft and $50 deductible insurance policy and said: “We are unable to obtain life insurance on your account and will give credit for same on your account.” The second letter dated August 14, 1959, was as follows: “Upon auditing your finance transaction on your 1957 Cadillac which you recently purchased from Johnny’s Used Cars, we found that we were unable to obtain life insurance on your account. “We have credited your account with the amount necessary to correct it, and are enclosing a new payment book containing the revised schedule of payments. Please use this new book in connection with all future payments and destroy the one you originally received.” The new payment card (sometimes referred to as the payment book) dated the same day as the second letter, contained ³⁷ a revised schedule of fifty-seven (instead of fifty-nine) installments of $60.00 each and a final payment of $54.11, or a total of $3,474.11 instead of the $3,561.00 called for by the original agreement. The buyer made the biweekly payments of $60.00 to the finance company rather regularly, using the new payment card (the amounts paid were entered on the card) until he committed suicide on June 17, 1960.

The administratrix claimed that upon her son’s death the balance due had been paid by the life insurance proceeds. The dealer and the finance company asserted that the original agreement as to insurance had been superseded by a second agreement that there would be no insurance and that the total amount payable would be $86.89 less, than originally called for. They demanded continued payments or the return of the car. The administratrix filed a