Illinois Bldg. Co. v. Patterson
Decision Date | 26 September 1932 |
Docket Number | 12372. |
Citation | 91 Colo. 391,15 P.2d 699 |
Parties | ILLINOIS BLDG. CO. v. PATTERSON. |
Court | Colorado Supreme Court |
Error to County Court, City and County of Denver; George A Luxford, Judge.
Action by Charles L. Patterson, doing business under the name and style of C. L. Patterson Office Equipment Company, against the Illinois Building Company. Judgment was rendered for plaintiff in a justice of the peace court and in the county court on appeal, and defendant brings error.
Reversed and remanded with instructions.
Cass M. Herrington and John R. Adams, both of Denver, for plaintiff in error.
William A. Black, of Denver, for defendant in error.
C. L Patterson, doing business as C. L. Patterson Office Equipment Company, defendant in error, hereinafter referred to as plaintiff, brought an action in a justice of the peace court against the Illinois Building Company, a corporation plaintiff in error, hereinafter referred to as defendant or landlord, to recover possession of certain office furniture, the title to which was claimed by both plaintiff and defendant. Judgment was rendered for plaintiff, and defendant appealed to the county court, where judgment was again rendered for plaintiff, to review which, defendant prosecutes this writ. Investors Bond & Mortgage Company, when referred to herein, will be designated as the tenant.
The material facts in this case, about which there is no substantial conflict, are: Defendant is the owner and in charge of a certain office building in the city of Denver, and, on February 10, 1928, it entered into a written lease with the tenant for certain office space, for the period of a year, at an annual rental, payable in monthly installments. The written lease contained a provision that, should the tenant be in default in the payment of a monthly installment, for the period of five days, the landlord might terminate the lease and re-enter and repossess itself of the premises, and remove any personal property belonging to the tenant, without prejudice to any claim for rent, and also the following: 'The Landlord shall have at all times a valid first lien for all rentals due or to become due hereunder from the Tenant upon all of the personal property of the said Tenant situated in the said leased premises, and said property shall not be removed therefrom without the consent of the Landlord until all arrearages in rent shall have first been paid and discharged.'
The lease was unacknowledged and unrecorded.
The tenant failed to pay the monthly installment of rent, due on December 1, 1928, whereupon, defendant placed a new lock on the door of the offices and took possession of the office furniture therein, claiming a lien thereon, by virtue of the above quoted paragraph of the lease, which lien defendant had reduced to possession, prior to receiving any notice whatever that plaintiff claimed any interest in or title to or right of possession of the office furniture. Plaintiff demanded possession, which was refused, and the replevin action followed.
Plaintiff is engaged in the office equipment business in Denver, and, on February 10, 1928, the same day upon which the lease hereinabove referred to was executed, entered into a written agreement with the tenant respecting certain office furniture, which written agreement is in words and figures as follows:
It will be observed that the above instrument was unacknowledged; however, it was filed for record in the office of the clerk and recorded of the city and county of Denver on February 28, 1928. All of the installments due on the above instrument were paid, excepting only the last in the sum of $56, which fell due in October, 1928, and for this amount the tenant gave plaintiff a check, which was dishonored. Subsequent to the date when defendant took possession under its landlord's lien, being some time after December 1, 1928, plaintiff made his demand on defendant for possession of the chattels.
Some of the evidence offered on plaintiff's behalf, and admissions of his counsel at the trial, tend to show the construction placed by them upon the 'Lease of Goods,' hereinBefore copied in full, and which will be hereinafter referred to as Exhibit A. For the purpose of showing the exact nature of this transaction, we quote such parts of the testimony as refer thereto.
One Lynch, who was the salesman who negotiated Exhibit A, testified, in part:
(Italics ours.)
Plaintiff testified, in part, as follows:
'Q. Isn't it customary when you lease goods, upon payment of the full list price, in accordance with the terms of the lease, that you contemplate giving a bill of sale in every case? A. If the lease is carried out according to the agreement, we do. * * *
'Q. Your lessee doesn't understand that upon payment of the purchase price set forth that he will get a bill of sale for the goods? A. We assume that he knows that. * * *
'Q. You stated you received this check (referring to the dishonored check of November 24, 1928, given him by the tenant) in payment of the balance due on the furniture involved in this suit here? A. Yes sir.
'Q. Mr. Patterson, you didn't give the Investors Bond and Mortgage Company a bill of sale for this furniture on the strength of this check? A. I did not.
'Q. You still retain title to this property? A. I have had short checks Before and I was watching my step. * * *
'Q. That was the balance Before bill of sale issued in accordance with the understanding with the Investors Bond and Mortgage Company? A. Yes sir. I said, 'I got a check on a bank in Lincoln, Nebraska, and if it don't come back, I will issue a bill of sale.''
Mr. Lynch, on direct examination, testified:
(Italics ours.)
It will thus be seen that in the county court plaintiff took the position that his 'Lease of Goods' agreement was a conditional sale contract, and we will confine him, to that position in this court. Glass & Bryant Mercantile Co. v. Farmers' State Bank, 83 Colo. 193, 203, 265 P. 682; Carlberg v. Willmott, 87 Colo. 374, 376, 287 P. 863.
The contentions of the parties hereto...
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