D. N. & E. Walter & Co. v. Efficient Investments, Inc.

FOURT, J. Defendants appeal from a judgment entered against them for the deficiency balance which remained after plaintiff took possession of and sold in partial satisfaction of defendants’ indebtedness, the personal property which constituted the subject matter of a conditional sales contract.

Efficient Investments, Inc., Max Dillman and Joan Dillman, Ira Brummell and Rose Mary Ann Brummell, defendants and appellants (hereinafter sometimes referred to as Efficient Investments) on August 25, 1964, executed as purchasers a written conditional sales contract with Jewel’s Interiors. This contract was entered into for the purchase and installation of padding and wall-to-wall carpeting in an apartment building then owned by appellants. Jewel’s Interiors subsequently assigned the conditional sales contract to D. N. & E. Walter & Company (hereinafter sometimes referred to as Walter). Thereafter Efficient Investments defaulted in the payments due under the contract and Walter filed the present action for breach of contract declaring the entire unpaid balance due.

After filing this action Walter took possession of the property covered by the conditional sales contract and on April 4, 1966, notified Efficient Investments that the goods would be sold at public sale. The owner of the apartment building at the time of the public sale was Union Bank. Union Bank paid $25,000 for the padding and carpets which were installed on the premises and Walter applied that sum to [295]appellants’ account but continued its action to obtain a judgment for the deficiency.

’ The trial court awarded judgment to Walter against Efficient Investments in the amount of $31,634.20 which represented the total amount due under the contract including attorney fees, less credit for the $25,000 received at the public sale of the chattels. In so doing the court found that the conditional sales contract governed the rights and liabilities of the parties and the measure of damages. The court further interpreted the contract to entitle Walter to sue for the unpaid balance without suffering any of the disabilities of an election, waiver, or estoppel thereby, and found that in repossessing and selling the chattels and crediting appellants Walter acted properly.

Appellants contend solely that the court incorrectly interpreted and applied paragraph 3 of the contract. Paragraph 3 provides that in ease of the purchaser’s default “. . . Seller, at its option and without notice to Purchaser, may (a; Declare the whole amount unpaid hereunder immediately due and payable; (b) Sue and obiain judgment against Purchaser for the balance remaining unpaid hereunder, together with court costs and reasonable attorney’s fees, but such suit and/ or judgment shall not constitute an election, waiver or estoppel by or against Seller, and title and right of possession shall nevertheless remain in Seller until this Agreement or such judgment is paid in full; or (c) Without prior demand, and with or without legal process. Seller may lawfully take immediate possession of said chattels together with all additions, equipment thereon and accessories thereto wherever the same may be found. Within ten (10) days of taking such possession, Seller shall give written notice to Purchaser (i) of his intention to retain chattels in satisfaction of the balance due, or (ii) that said chattels will be sold at public sale. . . Appellants claim that because the word “or” appears in the contract between subparagraphs (b) and (c) of paragraph 3, Walter when it took possession of and sold the carpeting became bound by its election of the alternate remedy described by subparagraph (c).