Royat v. Roberts

VAN DYKE, J.

This is a motion to dismiss the appeal upon the ground that appellants have accepted the benefits of the judgment entered in their favor. Thi§ requires an analysis of the pleadings, findings and judgment.

[448]

The appellants brought this action to recover possession of a tractor, and for damages resulting from the unlawful detention of said tractor by the defendants. Defendant Bank of America by its answer denied that appellants were entitled to the possession of the tractor; denied that it had taken possession of the property; and alleged that the tractor was “subject to a chattel mortgage dated July 22, 1946, by which all of said property was mortgaged to this defendant to secure a promissory note, also dated July 22, 1946, and all sums that might be thereafter advanced by this defendant to the mortgagor [defendant Roberts], all indebtednesses and obligations that might be thereafter incurred by the mortgagor to this defendant, . . .; and that the amount now due, owing and unpaid to this defendant and secured by said chattel mortgage is Three Thousand Five Hundred and Seventeen and 54/100 Dollars ($3,517.54), plus interest, costs, charges, and attorneys’ fees.” The answers of defendants Lawrence W. and George W. Roberts denied generally the allegations of the complaint.

The trial court found that defendants Roberts orally agreed to sell the tractor to the appellants on or about May 9, 1947*; that said agreement provided for a total consideration of $9,500; that appellants paid the sum of $1,000 down, and took possession of the tractor; that the agreement provided for retention of title in the sellers until the entire purchase price was paid, and the right to retake possession upon default ; that the defendant Bank of America at that time held a chattel mortgage on the tractor in the sum of $5,207.48; that appellants agreed to pay the balance of the purchase price by payments of all sums due the Bank of America under the chattel mortgage, and the remaining balance of the purchase price to defendants Roberts on or before the due date of the final payment under the chattel mortgage; that time was not of the essence under the agreement of sale; that defendants Roberts repossessed the tractor on December 13, 1948; that on the date of repossession the sum due the bank on the chattel mortgage was $327.08, and the unpaid balance on the purchase price, including the final installments owing to the bank, was $3,619.60; that prior to said date defendant Bank of America,"with the consent of defendants Roberts, had accepted delinquent payments due under the loan secured by the chattel mortgage, and thereby defendants waived the right to retake possession of the tractor since no notice restoring a reasonable time in which to make payments had been given; that the damage for the detention of the tractor