Lemon v. Hancock

BARNARD, P. J. This is an action to quiet title to a power shovel. On June 4, 1941, the Northwest Engineering Company sold this shovel on conditional sales contract to the Caledonia Operating Company, a limited partnership, of which Roger E. Jones was the general partner. This contract provided that the vendor might at its option take possession of the shovel on default of any payment but did not provide that time was of the essence thereof.

On December 10, 1941, the Caledonia Operating Company transferred its interest in the shovel by bill of sale to the defendant Hancock, as trustee. This was done pursuant to a written agreement between Roger E. Jones and Hancock and two other parties, which provided in general that Hancock was to advance $5,000 to enable a mining operation to be continued, that certain obligations were to be paid and that a corporation was to be later formed in which Jones would have a half interest, Hancock a one-fourth interest and the other parties a one-fourth interest. Hancock advanced $6,000, of which $1,100 was used to pay off a chattel mortgage on the vendee’s interest in the shovel, a considerable amount was used to pay past due payments and later payments on the contract price of the shovel, and the balance was used in paying expenses of the mining operations. The chattel mortgage was assigned to Hancock. The Northwest Engineering Company was notified that the vendee’s interest in the contract had been assigned to Hancock and it accepted payments from him. The shovel remained on the mining property, the mine being operated by the new partnership including Hancock and Roger E. Jones, and Hancock paid all installments on the purchase price of the shovel except the final three payments of $315 each, which came due about the first of April, May and June, 1942, respectively. [897]Most of the payments on the shovel were made late and after repeated demands by the vendor, and at least some of them were made and accepted after the time when the vendor had stated that it would take possession of the shovel.

Finally, on June 15, 1942, the Northwest Engineering Company notified Hancock, Roger E. Jones and the Caledonia Operating Company that it had instructed its San Francisco office to repossess the shovel unless the past due notes were paid by June 20, 1942. On June 22, 1942, the vendor notified these parties that it would hold up action on the repossession until June 29.

On June 29, 1942, an attorney, in whose office the Caledonia Operating Company maintained its office, informed Roswell C. Jones that the mining company, Roger E. Jones and Hancock were unable to meet the last payments on the shovel. Roswell C. Jones is a brother of Roger E. Jones and is the husband of “G. I. Jones.” On the same day this attorney wrote a letter to the Northwest Engineering Company stating that he was enclosing a check for the $1,005.79 then due on the shovel for the purpose of purchasing the contract and requested that the contract be assigned to “Mr. G. I. Jones,” that a bill of sale be issued “to him,” and that the assignment and bill of sale be sent to this attorney. The attorney signed this letter as attorney for the Caledonia Operating Company, Roger E. Jones and G. I. Jones.