Davies-Overland Co. v. Blenkiron

HOUSER, J.

In this action it appears that defendants sold an automobile on a conditional sales contract and that the vendee sold his interest in the automobile to the plaintiff with the understanding that the original vendee would pay to defendants the balance remaining due on the automobile, or in the event that such vendee should fail in that regard the plaintiff would make such payment. On the day on which the next succeeding payment on the automobile became due under the terms of the contract, the plaintiff offered to pay defendants the total unpaid contract price on the automobile, but defendants refused to accept the same or any part thereof. The contract called for no interest on deferred payments until after such payments had matured. Defendants obtained possession of the automobile from plaintiff without plaintiff’s consent and

[692]

refused to return it to plaintiff after plaintiff’s demand upon defendants so to do. Thereupon ‘plaintiff brought this action in claim and delivery against defendants and paid into court for defendants’ benefit an 'amount greater than the total unpaid balance due on said automobile. Judgment was ordered in favor of defendants and plaintiff appeals therefrom.

The conditional sales contract contained the following stipulation:

“Said purchaser agrees that he will not, and has no right to, assign, pledge, mortgage, or otherwise dispose of, this contract, or said automobile or any part thereof, . . . during the existence of this agreement without the written consent of the owner.”

The sole point involved in the appeal is whether or not in a conditional sales contract containing a stipulation which requires that before an assignment of the vendee’s right therein may be made, the written consent of the vendor must be first obtained—upon a sale thereof by the vendee without first obtaining such consent, the vendor may refuse to accept from the assignee of the vendee the total unpaid contract price, whether tendered to him by the vendee or by his assignee.

It is clear that a vendee under a conditional sales contract may convey only. such title as he possesses; also that it is only reasonable that by contract with the vendee the vendor should ordinarily be permitted to protect himself against a possible transfer by the vendee to a financially irresponsible person, or to one with whom for any reason the vendor might not care to entrust the property.