Parke & Lacy Co. v. White River Lumber Co.

California Supreme Court Jan 5, 1894 No. No. 18205Published

Before: Garoutte

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Holding. The court held that the instrument was a contract of sale rather than a lease, and that by previously suing for the purchase price, the plaintiff made a binding election of remedies that precluded it from subsequently seeking to recover the property.

Issues

Whether the instrument in question constituted a lease or a contract of sale.
Whether the plaintiff's prior action to recover the purchase price barred a subsequent action to recover possession of the property.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“This paper was not a lease. Calling it a lease did not establish the fact. This is peculiarly a case where there is nothing in a name, for the contents of the paper determine its true character.”

“The pursuit of one remedy necessarily excluded the other. It was not entitled both to the purchase price and the property, and an action brought to recover the purchase price, as was done in this case, is a ratification of the sale.”

Synopsis

Conditional Sale—Lease op Personal Property—Title to Pass Upon Payment.—An agreement by which the owners of personal property “lease” it to others, and which provides that upon the prompt payment of the sum of money to be paid as rental the title to the property would pass to the lessees, although called a lease, is not one, but is either a complete or conditional sale.

Id.—Foreclosure op Mortgage to Secure Purchase Money—Ratification op Sale.—Conceding such an agreement to be a conditional rather than an absolute sale, the action of the owners of the property in foreclosing a mortgage of realty, given by the purchasers of the property to secure the purchase price, is a ratification of the sale, and defeats the rights of the sellers to reclaim the property because of noncompliance with the conditions of the instrument in regard to payments.

Id.—Election op Inconsistent Remedies.—When two inconsistent remedies are open to a person he must elect which he will pursue, and having elected one, he is debarred from the other.

The instrument in question was, in effect, a contract of sale, and not a lease or bailment. (Heryford v. Davis, 102 U. S. 235; Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288; In re Seymour, 83 Mich. 496; Miller v. Steen, 30 Cal. 403; Bailey v. Hervey, 135 Mass. 172; De Saint Ger-main v. Wind, 3 Wash. T. 189; McGinnis v. Savage, 29 W. Va. 362; Harkness v. Russell, 7 Sup. Ct. Rep. 51; Hart v. Barney, 7 Fed. Rep. 553; Farquhar v. McAlevy, 142 Pa. St. 233; Hays v. Jordan, 85 Ga. 741; Baldwin v. Van Wagener, 33 W. Va. 293; Gorham v. Holden, 79 Me. 317; Hervey v. R. I. Locomotive Worhs, 93 U. S. 664; Lucas v. Campbell, 88 Ill. 447.) By electing to sue for the purchase price, and thus treating the transaction as a sale, plaintiff has waived the condition of payment. {Bailey v. Hervey, 135 Mass. 172; Butler v. Hildreth, 17 [38]Mass. 605; Terry v. Hunger, 121 N. Y. 161; 18 Am. St. Rep. 803; Boots v. Ferguson, 26 Hun, 129; Mild v. Burton, 49 Mich. 43; Stewart v. Huntington, 124 1ST. Y. 127; Pomeroy’s Remedies, 2d ed., secs. 565-569; 1 Wait’s Actions and Defenses—Election of Remedies, p. 504; Bach v. Tuck, 126 N. Y. 53; Fleury. v. Tufts, 25 Ill. App. 101; Aultman & Co. v. Olsen, 43 Minn. 409.)

H. A. Powell, for Respondent.

Contracts of the nature of the one at bar, whether in the form of a lease or of a conditional sale, have uniformly been enforced in accordance with the expressed intention of the parties. (Putnam v. Lamphier, 36 Cal. 151; Kohler v. Hayes, 41 Cal. 455; Hegler v. Eddy, 53 Cal. 597; March v. McKoy, 56 Cal. 85; Hendy v. Dinlcerhoff, 57 Cal. 3.)

Garoutte, J. This is an action to recover possession of certain personal property or its value. Defendants appealed from the judgment and order denying a motion for a new trial. Plaintiff, being the owner of certain personal property, consisting of machinery, etc., gave to defendants a writing, the substantial portions of which are as follows:

Lease.

“ The Parke" and Lacy Company, of San Francisco, California, lessors, hereby lease unto the White River Lumber Company and Warren D. Parson, of Tulare county, California, lessees, the following property for the period of nine months from the fifteenth day of June, 1889, to wit [then follows a description of the property]: Said property is to be used only at Arbor Vitse, Tulare county, State of California, and said lessees are to pay to said lessors, at San Francisco, for the use of said property, the sum of three thousand and sixty-four dollars payable as follows: All on the fifteenth day of March, a. d. 1890. Said lessees agree that they will pay the rent at the times and in the manner aforesaid.....It is further agreed that time is of the essence of this agreement, and upon a failure of the

Parke & Lacy Co. v. White River Lumber Co.

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