Barton v. Groseclose

• Citation: 11 Idaho 227,81 P. 623
• Parties: BARTON v. GROSECLOSE
• Decision Date: 27 June 1905
• Court: Idaho Supreme Court

81 P. 623

11 Idaho 227

BARTON v. GROSECLOSE

Supreme Court of Idaho

June 27, 1905

ATTACHMENT-CONDITIONAL SALE OF PERSONAL PROPERTY-ASSIGNMENT OF CONTRACT.

1. One who makes a conditional sale of personal property, delivering possession to the vendee and retaining the title thereto in himself until the purchase price shall be fully paid, cannot upon failure of the purchaser to make the payments, have an attachment against the property of the purchaser to secure the payment of the purchase price until the property itself has been exhausted.

2. Where the vendor on a conditional sale has delivered possession to the vendee, and thereafter sells and assigns the contract taken from the purchaser to a third party, the assignee of such contract is substituted to all the rights of his assignor, and cannot, therefore, have an attachment upon failure of the purchaser of the property to make payment.

3 ID.-The security retained by the vendor in such cases is not a vendor's lien but is a reservation of title and right to pursue the property in specie.

(Syllabus by the court.)

APPEAL from the District Court in and for Washington County. Honorable Frank J. Smith, Judge.

From an order made and entered dissolving an attachment, the plaintiff appeals. Affirmed.

Judgment affirmed. Costs awarded to respondent.

L. L Burtenshaw, for Appellant.

Under an identical statute and an identical case with the one at bar, Eads v. Kessler, 121 Cal. 244, 53 P. 656, the supreme court of California says: "It is to be observed that the existence of a vendor's lien always presupposes that the title of the goods has passed to the vendee, since it would be an incongruous conception that the vendor might have a lien upon his own goods. If it has been held that one who makes a written executory contract to sell his real property has a lien for the payment of the purchase money, it is because the other party to such contract is held to have an equitable estate in the land; but we have been referred to no cases which hold there is such a lien upon personal property where there is a mere agreement to sell." (Tiedeman on Sales, sec. 119; 21 Am. & Eng. Ency. of Law, 1st ed.; Jones on Liens, sec. 820; William v. Friedman, 3 Idaho 734, 35 P. 37; Gessner v. Palmateer, 89 Cal. 89, 24 P. 608, 13 L. R. A. 187.) A vendor's lien is not assignable. (Baum v. Grigsby, 21 Cal. 172, 81 Am. Dec. 153; Lewis v. Covilland, 21 Cal. 178; Williams v. Young, 21 Cal. 227; Avery v. Clark, 87 Cal. 619, 22 Am. St. Rep. 272, 25 P. 919; Shall v. Biscoe, 18 Ark. 142; Keith v. Horner, 32 Ill. 524; Dixon v. Dixon, 1 Md. (Ch.) 220; Hammond v. Peyton, 34 Minn. 529; 27 N.W. 72; Skaggs v. Nelson, 25 Miss. 88; Smith v. Smith, 9 Abb. Pr., N. S., 420; Jackman v. Hallock, 1 Ohio 318; First Nat. Bank v. Salem F. Mills (Or.), 39 F. 89.)

Ed. R. Coulter, for Respondent.

The contract between respondent and Spaulding Manufacturing Company has all the features of, and interpreted in the light of an overwhelming line of decisions thereon must be construed as one of, a conditional sale, reserving to the seller the title to the goods sold as security for the payment of the purchase price thereof. It has been repeatedly held by the supreme court of Idaho that such a lien prevents the issuance of an attachment, and that same is within the provisions of section 4303, Revised Statutes. (William v. Friedman, 3 Idaho 734, 35 P. 37; Mark Means Transfer Co. v. MacKinzie, 9 Idaho 165, 73 P. 137; Matterson v. Equitable Min. etc. Co., 143 Cal. 436, 77 P. 144; Vollmer v. Spencer, 5 Idaho 557, 51 P. 609; Standard Steam Laundry v. Dole, 22 Utah 311, 61 P. 1103.) A vendor may assign his claim to the property sold conditionally, and his assignee acquires the same rights therein as the vendor had, and the vendor in such case loses all his interest in the property. (Ross-Meehan etc. Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; 6 Am. & Eng. Ency. of Law, 2d ed., 485; W. W. Kimball Co. v. Mellon, 80 Wis. 133, 48 N.W. 1100; Rodgers v. Bachman, 109 Cal. 552, 42 P. 448; Matterson v. Equitable Min. etc. Co., 143 Cal. 436, 77 P. 144.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This appeal is from an order dissolving an attachment. The plaintiff, Barton, commenced his action in the district court as the assignee of two claims against the defendant--one an ordinary promissory note, the other the usual combination form of promissory note and conditional sale contract. Upon the filing of the complaint the plaintiff duly and regularly procured the issuance of a writ of attachment and caused certain of the property of the defendant to be attached, out of which to make any judgment that might be recovered against him. The defendant moved to dissolve the attachment on the facts disclosed by the complaint, and his affidavit in support of his motion. That motion was sustained by the district judge, and it is from the order made thereon that the appeal is prosecuted. On June 10, 1903, the Spaulding Manufacturing Company sold to the defendant a buggy and received as payment therefor defendant's promissory note, which note concludes with the following provisions: "I own in my own name one hundred and sixty acres of land in section , town of , county of Washington, state of Idaho which at a fair valuation is worth $ 1,500, on which there is no encumbrance except for $ . I also own $ worth of personal property over and above all exceptions. There is no judgment against me I make this statement at the time of the signing of this note for the purpose of obtaining credit, and it is understood that the ownership of this vehicle shall not pass from the Spaulding Manufacturing Company until fully paid for, and no salesman has authority to make any agreement not on the face of this note when made."

By the terms of this agreement it is clear that it constituted a conditional sale, and that the title to the property remained in the Spaulding Manufacturing Company. (Mark Means Transfer Co. v. MacKinzie, 9 Idaho 165, 73 P. 135; Harkness v. Russell, 118 U.S. 663, 7 S.Ct. 51, 30 L.Ed. 285.) It is contended by appellant, however, that the vendor of the property, by assigning the note and contract which had been executed by the vendee, thereby waived his right to reclaim the property, completed the sale and vested the title in the vendee. It is contended, on the other hand by the respondent, that the transfer of the note and contract carried with it...