Anderson v. Hiatt

SCHOTTKY, J.

This is an appeal by Prank E. Hiatt, Naoma M. Hiatt and Prank Hiatt Logging Company from a judgment awarding Norman Anderson recovery of $3,226.22 as the principal sum due on a promissory note, plus interest and $400 attorney’s fees.

In June, 1956, the Hiatts purchased a log loader known as a Pettibone Cary-Lift from Norman Anderson, doing business as the Shasta Machinery Sales. The total purchase price was $16,742.65 according to the sales invoice. The transaction was financed and the conditional sales contract read in part as

follows:

“1. Cash Selling Price.....................$16,714.15

2. Down Payment .......................$ 4,178.54

3. Balance ..............................$12,535.61”

The down payment was made by appellants by giving respondents $1,000 in cash and the promissory note of appellants for $3,226.22. The contract was then assigned by respondents to the Thorp Finance Corporation. On March 1, 1957, the appellants gave a note to replace the original note, and it is on this latter note that suit was commenced. The appellants defaulted in their payments on the conditional sales contract and the log loader was repossessed by Anderson on behalf of the assignee. The manufacturer paid off the finance corporation and took the equipment. Suit was then brought by respondents on the promissory note and judgment was entered in their favor.

Appellants contend that when the conditional seller, as in the instant case, repossesses the article sold under the contract he has elected his remedy and may not sue later for the balance due. This is no doubt the general rule based upon the doctrine of election of remedies where the terms of the

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contract or other circumstances of the transaction do not indicate otherwise.

(Budget Finance Plan

v.

Sav-On Food Club, Inc.,

44 Cal.2d 565, 568 [283 P.2d 694].) In the instant case recovery was not sought to secure the balance due under the conditional sales contract, or on a note secured by the conditional sales contract. Recovery was sought on an independent note given as part of the down payment.