Francisco v. Schleischer

RICHARDS, J.

This is an appeal by the defendant from a judgment in favor of the plaintiffs for the sum of $3,008.15.

The controversy between the parties grows out of a contract entered into by them on September 21, 1917, by which the plaintiffs agreed to sell to the defendant a large quantity of personal property constituting a teaming and grading outfit, and including approximately 200 head of horses and mules, wagons, scrapers, plows, a grading-machine and many other articles, and also approximately 200 tons of hay. The contract was in writing, and the payments were to be made at stated intervals, title to all of said property being retained in the vendors (plaintiffs) until its terms had been complied with. The defendant being in default in his payments the plaintiffs threatened legal proceedings for the recovery of the property. All parties being desirous of avoiding such proceedings and the defendant being unable to comply with the plaintiff’s demand for a further payment in accordance with the terms of the contract, the latter, on September 2, 1918, signed and delivered to the plaintiffs the following writing:

“I hereby agree to turn over to H. Francisco on the 15th day of September all real and personal property bought of H. Francisco and Katherine Francisco on the 21st day of September, 1917, and forfeit all payments made on said property.”

The defendant having also failed to comply with the terms of this agreement, the present action was brought.

[672]

The plaintiffs in an amended complaint, upon which the action was tried, after setting up the execution of the contract of September 21, 1917, alleged that in consideration of their releasing the defendant from the further performance thereof he executed the writing of September 2, 1918, above recited, but that he had failed and refused to return a large portion of the personal property referred to therein (the details of which are set out in paragraph III of the amended complaint), and converted the same to his own use. The reasonable value of said articles of personal property is alleged to be $3,203, for which sum judgment was demanded. In a separate cause of action the plaintiffs alleged that they also about the time of entering into the contract of September 21, 1917, made a lease of certain real property to the defendant, upon which the sum of $400 was due and unpaid, and this amount is also included in their prayer for judgment. The recovery of the plaintiffs included this unpaid rent, but no controversy arises with respect to it.