American Can Company v. White

• Decision Date: 01 October 1917
• Docket Number: 131
• Parties: AMERICAN CAN COMPANY v. WHITE
• Court: Arkansas Supreme Court

197 S.W. 695

130 Ark. 381

AMERICAN CAN COMPANY v. WHITE

No. 131

Supreme Court of Arkansas

October 1, 1917

Appeal from Jackson Circuit Court; Dene H. Coleman, Judge; reversed.

Judgment reversed, and cause remanded.

Ira J Mack, for appellant.

1. The contract was one of conditional sale. The word "lease" used therein does not change the legal effect of the instrument. Williston on Sales, 526, § 336; 120 F. 64; 58 Am. Dec. 767; 89 Am. Dec. 124; 95 Am. Dec 455; 79 Am. St. 41; Mechem on Sales, §§ 569, 570; Tiffany on Sales (2 ed.), 134.

2. Upon default in the payments appellant had the right either to bring replevin for the property, or to affirm the sale and sue for the purchase money. 88 Ark. 99; 100 Ark. 403; 175 S.W. 516. Having elected to sue for the purchase money thereby waiving title to the property, appellant had the right under the statute to have the property impounded, and a lien declared thereon for the purchase money. Kirby's Dig., §§ 4966 et seq.; 52 Ark. 450.

Appellee pro se.

This was a contract of lease, the consideration being the use of the machine. Plain and unambiguous, it must be construed as made. 105 Ark. 213. And having been drafted by the appellant, it should be construed more strongly against it. 74 Ark. 41.

Before appellant could maintain its action, there must have been a sale and delivery with intention to pass title to the purchaser. The right to a vendor's lien exists only when there is a sale and purchase. Kirby's Dig., §§ 4966-4969; 52 Ark. 450.

See also 30 Ark. 402; 47 Ark. 363; 53 Miss. 596.

STATEMENT OF FACTS.

This suit was instituted by the appellant against the appellee for the purchase price of an adding machine sold by the appellant to the appellee under a contract which provides as follows:

"I, P. S. White, do hereby agree to lease from American Can Company one American adding machine No. , on which I have this day paid $ 8 and on account of which I further agree to pay $ 7 on the 15th day of each and every succeeding month thereafter, beginning May 15, 1916, until the total sum of $ 88 shall have been paid.

"It is understood and agreed that the title to said adding machine shall remain in said company until final payment in full shall have been made; that said adding machine shall not be removed from his place of business in the city of Newport, State of Arkansas, without said company's written consent; that, in default of any of said payments, said company or its representative is hereby authorized to enter his premises and take and remove said adding machine without legal process or at its option may leave machine in possession of the lesee and declare all unpaid balance as due and payable. The lessee assumes the responsibility for the loss of our damage by fire or otherwise to the above described machine, and agrees to pay for any damage which may occur to it, or to pay for the machine itself, if destroyed, or if for any other reason it shall not be returned to the owners. It is understood and agreed that this order is subject to the approval of the American Can Company."

The appellant also, in connection with his suit, asked that a vendor's lien be created and enforced under chapter 101 of Kirby's Digest.

The appellant introduced its contract and called appellee as a witness, who testified that he made the contract with appellant, and when the machine came he wrote appellant that he did not want the machine. Appellant replied that he could not cancel the contract. Appellee took advantage of that clause in the contract where it says that if he failed to pay then they could take the machine without legal process. The appellee neglected to pay and appellant drew on appellee and he refused to pay the draft. Appellant sent its representative to see the appellee and appellee told appellant's agent to take the machine. They refused to do so and sued the appellee. The appellee construed the contract as a lease, requiring payments on the installment plan. The penalty for failure to pay was the taking of the machine. Appellee did not own the machine and appellant came and took it. Appellee was not liable to them for a cent. Appellee received a letter advising him that appellant had exercised its option and after that the suit was filed. If appellant had not given appellee notice that it had exercised its option appellant could not have come and gotten the machine. Appellant took the machine before the last note--last payment under the contract--was due.

The court found the facts as follows: "Prior to the institution of the suit in the justice court the plaintiff notified the defendant that, default having been made in the payments under the contract, that it had exercised its option in the contract to and did declare all the unpaid balance of the contract price of the adding machine as due and payable; that defendant has paid on the purchase price $ 8, leaving a balance of $ 80, and none of this balance has ever been paid by the defendant. An affidavit was filed by plaintiff as a vendor to create and enforce a lien, under the statute, against said adding machine, setting up that it was in the possession of the vendee, and asking that it be taken by the officer of the court and held subject to the orders of the court. The adding machine was taken from the possession of the defendant under a writ of attachment issued on this affidavit and held by the constable. Under the terms of the contract of lease the plaintiff could not claim the benefit of both options expressed in said contract, of 'taking and removing said adding machine,' or 'may leave machine in possession of lessee and declare all unpaid balance due and payable.'"

The court thereupon rendered judgment in favor of the appellee, and appellant brings this appeal.

OPINION

WOOD, J., (after stating the facts).

The court erred in construing the contract as a lease. Although the contract recites, "I, P. S. White, do hereby agree to lease," etc., and although the appellee is designated in the body of the contract as the "lessee," nevertheless the language which states the reciprocal duties and obligations and the respective rights of the parties shows that it was their intention to enter into a contract to sell on certain conditions, but not to lease. The contract must be construed as a whole and the intention of the parties gathered from the...