Liver v. Mills
Before: Sloss, Beatty
Synopsis
Conditional Sales or Personal Property—Bights op Third Parties. —The validity of conditional sales of personal property is fully recognized in this state; and even bona fide purchasers from one to whom personal property has been delivered upon conditional sale, under an executory contract reserving title in the vendor until the purchase money is fully paid, obtain no valid claim to the property superior to the rights of the original purchaser.
Id.—Effect of Contract Reserving Title—Right of Possession upon Default.—When a contract for the sale of personal property expressly reserves title in the vendors until the purchase money is paid the title carries with it the right of possession in case of default, though such contract does not contain the usual provision to that effect.
Id.—Claim and Delivery for Default in Payment—Ordinary Rights of Purchaser or Assignee to Complete Purchase.—Notwithstanding the recovery of possession by the owners of the legal title for default in payment, the purchasers or their assignee if the contract of sale has not been repudiated, may still complete the purchase and perfect the right to receive the property again by paying the balance due with interest. The mere retaking of the property by the vendors determines only the right to possession at that time, and does not in and of itself terminate the life of the contract, if time is not made of its essence.
Id.—-Repudiation of Contract by Assignee of Vendees—Defense to Suit by Assignee to Enforce Purchase—Omission in Findings —Reversal.—An assignee of a contract involving a conditional sale, who stands in the shoes of the conditional purchasers and has expressly refused upon demand to pay the unpaid purchase money and denied and repudiated the title of the vendors and claimed title to the property and has unequivocally declared that he is not bound by the contract and will not perform the obligations, cannot after the vendors have reclaimed the property, come in and demand the fulfillment of the contract which he has thus repudiated; and where said repudiation is interposed as a defense to a subsequent suit of the assignee to enforce the contract, a judgment for the assignee, without any finding upon said defense, must be reversed. [Beatty, C. J., dissenting.]
Id.—Effect of Repudiation—Discharge of Vendors from Obligation. —Such repudiation of the contract by the assignee of the vendees will relieve the vendors from all obligations to perform on their part.
Id.—Retaking Possession—Treating Contract as Ended not Waived :—Rescission not Required.—The retaking of the possession of the property conditionally sold did not waive the right of the vendors to treat the contract as ended by reason of the repudiation of the contract by the assignee. In the face of such repudiation they were not bound to rescind but were at liberty to treat the right of purchase as ended, and to retake the property.
Opinion — Sloss
SLOSS, J.
On May 7, 1906, the appellants, who were the owners of a certain automobile, made a contract of conditional sale thereof to S. A. Thompson and J. S. Miller, whereby said vendees were to have possession of the automobile, but title thereto was to remain vested in appellants until the full purchase price was paid. Thompson and Miller paid all of the purchase price except the sum of $132, which was due on May 27, 1906. On June 23, 1906, they sold and delivered the automobile to James J. Liver, respondent herein. On June 26, 1906, Mills and Price, the appellants, instituted an action of claim and delivery against Liver for the recovery of the possession of the automobile. Pending the action, the automobile was, by virtue of a writ, taken from Liver and delivered to Mills and Price, who, on September 17, 1906, recovered judgment declaring that they were entitled to possession. Thereafter, on September 27, 1906, Liver tendered to Mills and Price the balance of $132 which had fallen due May 27, 1906, with interest, and demanded redelivery of the automobile. Compliance with his demand being refused, he commenced this action to recover $450, the value of said machine, and judgment was entered in his favor for such amount, less the $132 (with interest) due under the contract of conditional sale. The defendants appeal from the judgment and from an order denying their motion for a new trial.
The facts as above stated are taken from the findings of the court. So far as we have set them forth, it is not questioned that such findings are in accordance with the testimony. It is, however, claimed by the appellants that the court failed to find upon certain material issues raised by their answer. The answer alleged that prior to the commencement of the action of claim and delivery the defendants herein demanded of Liver that he pay to them the balance of $132 then due, or deliver to them the possession of the automobile, but that said plaintiff refused to do either of these things. It is further alleged that said plaintiff repudiated the terms of the conditional sale, asserted absolute ownership in and right to the possession of
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the automobile, and denied that said defendants had any right, title, or interest therein. There was evidence in support of these allegations. We think it clear that findings in favor of defendants upon the issues so raised would have required a judgment that the plaintiff take nothing by the action.
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