Cook and Sons Equipment, Inc. v. Killen

Decision Date21 April 1960
Docket NumberNo. 16273.,16273.
PartiesCOOK AND SONS EQUIPMENT, INC., Appellant, v. Morris KILLEN, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Edgar Paul Boyko, Richards, Watson, Birnbaum & Smith, Los Angeles, Cal., for appellant.

Bell, Sanders & Tallman, Bailey E. Bell, William H. Sanders, James K. Tallman, Anchorage, Alaska, for appellee.

Before ORR, POPE and HAMLIN, Circuit Judges.

ORR, Circuit Judge.

In the District Court of Alaska, an action was instituted wherein one Morris Killen was named as plaintiff and "Charles Cook and Charles Cook, Jr., d/b/a Cook & Sons Equipment Company, in the State of California" were named as defendants. It is apparent from the designation of the parties in the complaint that the pleader was under the impression that the defendants were operating a partnership. However it was later made manifest that Cook & Sons Equipment Company is a corporation.

The corporation appeared and answered, trial was had and judgment entered against the defendants as named in the complaint, with the exception that "Inc." was added after the word "Company". The corporation having answered, and in the proceedings in the district court recognized as such, we will treat it as having been properly before the district court as a party.

After the entry of judgment in favor of plaintiff, an appeal was taken in which the corporation alone was named as appellant. No mention of the individual defendants was made. After the lodging of the appeal, a motion was made by the individual defendants to have their names added to the notice of appeal on the ground that the omission was a clerical error. The omission here was much more than a clerical error. It was a failure of the individual defendants to appeal. We have no authority to amend a notice of appeal so as to bring in additional parties. Appellant relies on Rule 75(h) of the Federal Rules of Civil Procedure, 28 U.S.C.A. That rule has no application in the instant situation. It applies to errors in the contents of a record. Rule 73(b) requires that the notice of appeal specify the parties taking the appeal. Only the parties named in the notice of appeal are brought within the appellate court's jurisdiction. VII Moore, Federal Practice (2d ed. 1955) §§ 73.13, 73.14. The harmless error doctrine has no application to failure to name parties in a notice of appeal. Penwell v. Newland, 9 Cir., 1950, 180 F. 2d 551. The motion to amend the notice of appeal so as to include additional parties is denied.

The sole appellant is the corporation. The salient facts of this case are:

Cook & Sons Equipment, Inc. is a California corporation engaged in the business of selling dump trucks and other construction equipment. Charles Cook, Jr. is a stockholder and president of the corporation and Charles Cook III a stockholder and representative. On May 7, 1952, Mahlon J. Connett of Fairbanks, Alaska visited appellant's principal office in Van Nuys, California and there negotiated a conditional sales contract covering the purchase of a 1952 International dump truck. Mr. Connett, having made the required down payment, personally received delivery of the truck in California and drove it to Fairbanks, Alaska with appellant's consent. On June 2, 1952, Connett sold the truck to appellee Morris Killen, notwithstanding that the conditional sales contract expressly prohibited such a transfer. Connett informed Killen of the existence of the conditional sales contract between appellant and himself, and he, Connett, promised to pay the balance due appellant under said contract within 90 days. Killen took possession of the truck and drove it to his home in Anchorage, Alaska, and there stored it for the winter in his backyard. He had other equipment stored there also.

Connett failed to pay the balance due and owing under the conditional sales contract. Pursuant to said default and for the purpose of repossessing the truck, Charles Cook, Jr. went to Alaska. Without giving appellee Killen prior notice of his intention to repossess, he proceeded to appellee's yard, where said truck was stored, on September 27, 1952. No one being present at said yard at that time, with the assistance of a garageman and tow truck he removed the dump truck from the yard and immediately drove it to California.

On October 20, 1953, appellee Killen commenced an action in the district court charging an unlawful conversion of his truck. The case was tried to the court without a jury, judgment being rendered in appellee's favor. The court held that Alaska law applied and, therefore, appellant had a duty under the Alaska Conditional Sales Act (Alaska adopted the Uniform Conditional Sales Act, A.C.L.A. 1949, § 29-2-1 et seq.) to keep the truck in Alaska for 10 days following repossession in order to afford the buyer an opportunity to redeem it within that time.1 This appellant had failed to do. Appellee was awarded his equity in the truck as "actual damages" pursuant to the remedy set forth in the Alaska act.2

As we have said, the trial court determined that Alaska law rather than California law applied. The question is not without its complexities and on its proper resolution depends the determination of this appeal. The negotiations for the sale of the truck took place at appellant's place of business in California. The conditional sales contract was signed by the parties at said place and possession of the truck was delivered to the buyer in California. With the consent of the seller, the buyer drove the truck to his home in Alaska where it was to be used. The contract had been drawn in conformity with the requirements of § 2982 of the California Civil Code. Said contract provided that payment was to be made at the seller's office or the office of any assignee of the seller. It also contained the following language:

"Time is of the essence of this contract and in the event Purchaser defaults on any payment due under this contract * * * Seller * * * may take immediate possession of said property without demand * * * and for this purpose Seller may enter upon the premises where said property may be and remove same. Such possession shall terminate Purchaser\'s rights hereunder and Seller may retain said property and all payments made prior thereto by Purchaser * * *" Emphasis ours.

At the time this transaction occurred, California had not adopted the Uniform Conditional Sales Act or other similar legislation. Under California law, the precise language which we have italicized above has been held to allow the seller on the buyer's default to repossess without prior demand or notice and to refuse to allow the buyer to redeem even though a tender of full payment is made. Miller v. Steen, 1866, 30 Cal. 402; Zeff v. Harvey Smith Oldsmobile Co., 1957, 154 Cal. App.2d 1, 315 P.2d 371; Pacific Finance & Investment Co. v. Pierce, 1920, 48 Cal. App. 600, 191 P. 1115. See also 27 Cal. L.Rev. 583 (1939); 43 Cal.Jur.2d §§ 361-363. On the other hand, under the Uniform Conditional Sales Act as adopted in Alaska the buyer would have a right to redeem regardless of an express contract provision to the contrary. § 29-2-18, A.C.L.A.1949. The trial court reasoned that Alaska law should govern, it being the proper law of contract since removal of the truck to Alaska had been contemplated and performance of the contract was to take place in Alaska.

Our search has failed to reveal an Alaska case dealing with the choice of law which must be made. The difficult problem is that of characterizing the interests involved herein as either proprietary or contractual. We must look to the proper law of contract in construing contractual rights but should choose the law of the situs of a chattel at the relevant moment of time to determine the proprietary interests a transaction creates in that chattel. A conditional sale has contractual and proprietary asspects. When the conditional sale is consummated, however, it conveys to the buyer the right to possession and to complete ownership upon full payment, and title is retained by the seller until such time. These are interests in property and, although created by contract, are properly characterized as proprietary. II Beale, Conflict of Laws (1935) §§ 255.1, 272.3; Goodrich, Conflict of Laws (3d ed. 1949) § 157. The Commissioners on Uniform State Laws have so characterized them. Restatement, Conflict of Laws (1934) §§ 272-282. The seller's right to repossess is an interest in property the proprietary character of which cannot be distinguished from the reservation of title itself, and the proprietary nature of the buyer's right to redeem differs in no respect from his right to complete ownership upon performance of the condition.

The law of the situs of the chattel at the time the conditional sale is completed, usually the place where the chattel is delivered to the buyer or his agent absent a contrary intent, is the proper choice of law to apply to determine whether the conditional sale was legally effective to keep title in the vendor after possession is transferred to the buyer. Maguire v. Gorbaty Bros., 2 Cir., 1943, 133 F.2d 675; II Beale, supra § 272.2; Goodrich, supra § 157; ...

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