McConnell v. Redd

TYLER, P. J.

Action in claim and delivery. The complaint in substance alleges ownership in plaintiff of a certain ice-machine, cooler, and equipment, of the value of $400; wrongful possession and detention by defendant, and a demand for delivery. The prayer is for possession of the property or in case delivery cannot be had for its value together with damages. The answer denies ownership in plaintiff; alleges the value of the property to be $875; admits possession; alleges ownership in defendant- and denies wrongful detention.

Briefly stated, the facts show that plaintiff was engaged in the business of selling and installing ice-machines,

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coolers, and equipment. Defendant conducted a dairy farm at Newark, California. He was desirous of obtaining an ice-machine for the cooling of his product. Accordingly he entered into a written contract with plaintiff, wherein and whereby plaintiff agreed to install at defendant’s ranch a certain character of ice-machine, cooler, and necessary equipment, for which defendant agreed to pay the sum of $875, according to the terms and conditions expressed in such contract. Among the conditions was one which provided that title to the property should remain in plaintiff until fully paid for. In this connection the contract further provided that the institution of an action for the price should not be considered a waiver of the reservation of title. Upon default in payment of any part of the purchase price the parties agreed that the entire balance should forthwith become due and payable, plaintiff, in that event, being given the right to retake possession of the property, either .with or without resort to legal process, and to retain all amounts theretofore paid on account thereof, and either terminate the contract, or at his option, resell the property as a whole or in parts, either at public or private sale. The net amounts so realized were to be applied toward the unpaid portion of the purchase price, defendant to be liable for any deficiency, or upon such default plaintiff was given the option to recover from defendant the entire unpaid portion of the purchase price. Time was made of the essence of the contract. Plaintiff, in accordance with the contract so entered into, proceeded on May 9, 1924, to install the machinery as agreed, but during the course of the installation defendant informed plaintiff he did not desire the particular cooler the contract provided for, but one of a different make. Plaintiff agreed to provide the desired cooler upon condition that defendant pay plaintiff the sum of $70, in addition to the sum specified in tiie contract, which defendant agreed to do. The substituted cooler, together with the other machinery, was installed, this item being the only deviation from the written contract above referred to. The additional cost of the cooler brought the contract price to the sum of $945, and of this sum plaintiff received of defendant, through one B. S. Babue, of the Producer’s Milk Company, to which firm defendant sold his milk, the sum of $728.25, thus leaving a balance of $216.75, with interest