Pac. Carbonator Co. v. Haydes & Son

JAMES, J.

Plaintiff sued on two counts, one being for merchandise sold to defendants, and the other for a balance of six hundred and forty dollars, with interest, alleged to be due on a promissory note executed by defendants in favor of plaintiff. The trial court awarded judgment to plaintiff for twenty-two dollars and fifty cents on account of the merchandise sold, but denied judgment for any amount on the promissory note. The appeal is taken by the plaintiff from the judgment so rendered against it, and from an order denying a motion for a new trial.

The promissory note was given as evidence of an indebtedness created by a written contract under which a certain lot of machinery was sold to defendants. The promissory note was made payable in monthly installments of forty dollars,

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which represented the terms under which the machinery was to be purchased. That the transaction amounted to a conditional sale, with title reserved in the vendor until all payments had been made, is admitted by both parties. It is also admitted that only the sum of one hundred and sixty dollars was paid by the defendants on account of the contract for the purchase of the machinery. The trial court made the following finding of fact under which the judgment was directed to be entered in favor of defendants;

“That defendant was unable to make the payments that became due thereafter and during the month of April, 1913, plaintiff informed defendant that owing to its being unable to make the payments when due, under the provisions of the said written agreement hereinbefore set forth, plaintiff would take the property described and remove it from the possession of defendant, and that all of the payments made thereon would be forfeited to plaintiff, to all of which defendant agreed, and plaintiff elected to cancel said contract, and take back said property, and believing and relying on plaintiff’s said statement and election, defendant immediately procured other machinery and apparatus, and without delay notified plaintiff to remove the said machinery and apparatus from the premises of defendant.”

It is claimed, among other contentions, that the evidence does not support the findings. In examining this point, we are referred to a statement of the evidence which was agreed to by the plaintiff and the defendants. In that statement the testimony of one of the defendants is given. This party testified that he and his codefendant were unable to make payments which became due after February, 1913, under this contract; that during the month of April, 1913, the agent of the plaintiff informed the defendants that owing to defendants ’ failure to make the payments when due under the provisions of the written agreement between defendants and plaintiff, he was instructed by plaintiff to take the property described in the said agreement and remove it from the possession of defendants, and that all payments which had been made thereon would be forfeited to plaintiff; that Mr. Edmunds informed defendants that he would give them until a certain time, about three days thereafter, in which to make the payments then due, or that he would take out the machinery, and at the end of said three days Mr. Edmunds came to