Baer v. General Motors Acceptance Corporation
| Decision Date | 13 February 1931 |
| Citation | 101 Fla. 913,132 So. 817 |
| Parties | BAER et al. v. GENERAL MOTORS ACCEPTANCE CORPORATION. |
| Court | Florida Supreme Court |
Commissioners' Decision.
Error to Circuit Court, St. Johns County; George Wm. Jackson Judge.
Proceedings on a distress warrant for rent by M. D. Baer and another against the Chadwick Motor Company, Inc., wherein a claim affidavit and bond were filed by the General Motors Acceptance Corporation. To review a judgment in favor of claimant, plaintiffs bring error.
Affirmed.
Syllabus by the Court.
When the question is properly raised as to whether a written instrument is in substance a mortgage, testimony of witnesses is admissible to show the intent and purpose of such instrument.
Whether a written instrument is in legal effect a mortgage is a question of law to be determined by the court.
Upon breach of a conditional sales contract, the vendor may either treat the sale as absolute and sue for the price, or he may treat the sale as canceled and recover the property; he cannot pursue both courses, and an election of one of the two remedies may operate as a waiver of the other.
An assignment of a conditional sales contract which had reserved title in original vendor gives the assignee the legal status of the vendor, and, upon default of payments, such assignee may repossess the property.
The assignee of a conditional sales contract, payment of which is guaranteed by assignor, may, upon failure of purchaser to complete contract, either retake the property or look to the assignor for the remainder of the purchase price.
There is no doctrine more thoroughly established in this state than that, when one holds a conditional sales contract, in which he reserves the title to personal property sold and retains the right, upon the failure of the vendee to make the stipulated payments, to retake possession of the property, he cannot, after exercising his right to retake the property continue the pursuit of the purchaser on the debt. He cannot be both owner of the property sold and creditor of the vendee for the amount of the purchase price. He cannot have both the remedy of retaking possession of his property and suit to enforce the debt for the purchase price.
An assignee of a conditional sales contract title cannot be both the owner of the property designated and creditor of assignor at the same time, even though assignor guarantees payments.
Under section 5420, Compiled General Laws of Florida 1927, every person to whom rent may be due shall have a lien for such rent upon all property of lessee or sublessee found upon or off the premises and usually kept on the premises which lien shall be superior to any lien acquired subsequent to the bringing of such property on the premises leased.
Where property is being purchased by a tenant dealer under a retained title contract, the vendor who retained the title has priority over the landlord's lien for rent, unless the title became in the meantime vested in dealer.
M. L. Stephens, of St. Augustine, for plaintiffs in error.
Elliott Adams, of Jacksonville, for defendant in error.
This case is here on writ of error to the circuit court of St Johns county, to review a judgment in favor of General Motors Acceptance Corporation, as claimant, and against M. D. Baer and Dora Tarlinsky, as plaintiffs in execution. For convenience the parties to this appeal will be referred to as claimant and plaintiffs, respectively.
On September 24, 1929, a distress warrant for rent in favor of plaintiffs was issued and executed upon the contents of the building and premises in question which were occupied by the Chadwick Motor Company, Inc., who was a dealer in automobiles and accessories. On October 8, 1929, a claim affidavit and bond were filed by the General Motors Acceptance Corporation claiming that it owned five of the cars so attached. On November 13, 1929, a trial was had upon the distress warrant and a judgment was entered against the defendant and in favor of plaintiffs, lessors, in the sum of $700 and costs. At the sale of the remaining property under the distress judgment only $300 was realized, and, after deducting legal costs, there remained only $277.75 to be credited on the judgment of $700 and costs.
The claim affidavit set up that the title to, and ownership of, the five automobiles was in claimant and not in the dealer. Upon issue being joined thereon the case came on for trial, and the court instructed a verdict and rendered judgment thereon in favor of claimant. After a motion for new trial was denied, plaintiffs took writ of error.
It appears that Chadwick Motor Company as dealer sold the five cars to persons who paid a part of the purchase price in cash and for balance due executed what is called a 'conditional sales contract' in triplicate. This contract required the 'original to be sent to General Motors Acceptance Corporation.' The contract also provided for the purchase of the described motor car for a certain price payable so much on or before delivery with deferred balance payable at the offices of General Motors Acceptance Corporation in equal installments; that 'title to said property shall not pass to the purchaser until said amount is fully paid in cash'; that 'in the event the purchaser defaults on any payment due on this contract * * * the full amount shall, at the election of the seller, be immediately due and payable'; that any sheriff or other officer may take immediate possession of said property and seller may resell said property so retaken at private or public sale without demand for performance with or without notice to the purchaser upon such terms and in such manner as the seller may determine; that from the proceeds of such sale the seller shall deduct all expenses for retaking, etc., the balance to be applied to the amount due; and that 'any repossession or retaking or sale of the property pursuant to the terms hereof shall not operate to release the purchaser until full payment has been made in cash.' The purchase contract is signed 'Chadwick Motor Company, Inc., by Thomas R. Lewis, V. P.' and is also signed by the purchaser.
The following appears on the reverse side of the above-mentioned contract:
It appears that the five purchasers failed to make the deferred payments as provided in said contracts, and the cars were repossessed as indicated by papers similar to the following, the provisions of which may be applied to all five cars:
'Receipt for Repossessed Car
'The undersigned dealer hereby acknowledges receipt from GMAC of the following:
Make/Chevrolet
Model 1927/Cabriolet
Year/1927
Motor No./3831811
for storage purposes only. It is understood that the undersigned will be liable for any charges which may accrue against the car and agrees that the car will not be disposed of until the outstanding balance due General Motors Acceptance Corporation is paid.
'Date Sept. 20, 1929
'[Signed] Chadwick Motor Co. Inc.
'By Thomas R. Lewis V. P.'
At the trial testimony was taken with regard to the intent and purpose of the 'assignments' and 'receipts,' as interpreted by witnesses connected with the transaction which may properly be done in such cases when the question is raised as to whether the transaction involved was in substance or intended as a security for a loan. See Chaires v. Brady, 10 Fla. 133; Hull v Burr, 58 Fla. 432, 475, 50 So. 754, and cases there cited.
A. W. Chadwick, Jr., president of Chadwick Motor Company, Inc., a witness for claimant at the trial for the release of the five cars from the distress for rent, testified in part that on October 18, 1926, he leased the premises in question from M. D. Baer and M. R. Glickstein for the Chadwick Motor Company for a period of five years at a stated rental; that rent was paid until January 22, 1929, when it was delinquent in the amount of $500; that the cars in question were repossessed from purchasers because of the nonpayment of certain installments; that the cars levied upon were the property of General Motors Acceptance Corporation and were being held for it, and that under the terms of the agreement the Chadwick Motor Company was obligated to pay the outstanding balance to claimant and the cars would then become the property of the Chadwick Motor Company.
Thomas R. Lewis, vice president and general manager of Chadwick Motor Company, Inc., also...
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