Bennett Bros. Co. v. Tam

• Decision Date: 19 November 1900
• Citation: 62 P. 780,24 Mont. 457
• Parties: BENNETT BROS. CO. v. TAM et al.
• Court: Montana Supreme Court

62 P. 780

24 Mont. 457

BENNETT BROS. CO. v. TAM et al.

Supreme Court of Montana

November 19, 1900

Appeal from district court, Silverbow county; John Lindsay, Judge.

Action by the Bennett Bros. Company against K. D. Tam. S. F Fitchett intervened. Judgment against plaintiff, and it appeals. Reversed.

Action in claim and delivery. On April 8, 1896, the plaintiff was the owner and in possession of the property involved in this suit, and on that day sold and delivered the same to John I Pittman under the following written contract, signed by the said Pittman and one J. V. Lemon: "$125.00. Butte Montana, Apr. 8th, 1896. On or before the 8th day of July 1896, for value received, we or either of us promise to pay Bennett Brothers Company, or order, one hundred and twenty-five & no/100 dollars, payable in currency funds, with interest at the rate of no per cent. per mo. from date, 189--; to maturity, 189--; and, if not paid when due, interest to be at the rate of 1 1/2 per cent. per mo. from maturity until paid both before and after judgment, and twenty per cent. of full amount for attorney's fees if suit shall be instituted on this note for collection. The express condition of the sale, purchase, and delivery of the articles described on the back of this instrument is such that the title, ownership, or right of possession does not pass from the said Bennett Brothers Co. until this note and interest and all other notes and interest taken for the said articles are paid in full; and in case of default in the payment of any part of said note, principal or interest, when due, or of any judgment rendered thereon, or in case of any attempt to incumber, dispose of, or to remove said articles from the county of S. Bow, in the state of Montana, without the written consent of Bennett Brothers Co., its agents or assigns, the maker or purchaser shall, on demand, deliver said articles to the said Bennett Brothers Co., its agents or assigns, in as good condition as when received, reasonable use and wear thereof excepted, and the said Bennett Brothers Co., its agents or assigns, shall have the right to enter upon any premises where the said articles may be found, using such force as may be necessary to enter and take the same; and in case said Bennett Brothers Co., its agents or assigns, shall retake possession of the said articles, all moneys paid on the purchase price thereof shall belong to the said Bennett Brothers Co., or its assigns, as stipulated damages for the non-fulfillment of this contract for depreciation of the value of said articles, and for use or rental of said articles while the same remained in the possession of the purchaser. The said Bennett Brothers Co., or its assigns, have full power to declare this note due and to take possession of the said articles at any time they may deem themselves insecure,--even before the maturity of this note. In the event of the payment of all notes, principal and interest, taken for said articles, and of any judgment or judgments obtained thereon, the full; absolute, and complete title to said articles shall pass to and vest in the purchaser thereof, the maker of this note. Due July 8th, 1896. [Signed] John I. Pittman. [Seal.] J. V. Lemon. [Seal.]" The subject of the contract is described upon the back of this instrument as a "Peerless buggy, Jackson springs."

The complaint alleges generally ownership and right of possession of the property in the plaintiff, that its value is $100, and that defendant Tam wrongfully detains the same from plaintiff after demand for its return. This defendant, in her answer puts in issue all the allegations of the complaint, except as to the value, and alleges title in herself by purchase from defendant Fitchett. After the issues were made up between plaintiff and defendant Tam, upon application for that purpose, the plaintiff interposing no objection, Fitchett was allowed to intervene, and to be substituted for the defendant Tam. This substitution was made upon a showing by Fitchett that some time before the suit was brought he had purchased the buggy from Pittman in good faith and for value, without knowledge of any claim thereto by plaintiff; that thereafter he had sold the same to defendant Tam under an agreement that he would protect her against any suit brought to recover it from her; that defendant Tam, as he was informed, did not intend to defend the action in good faith; and that he was therefore interested in having a defense made to the action, to the end that he might protect himself from a suit for damages by defendant Tam upon his agreement with her. In his complaint of intervention, besides denying generally all of plaintiff's allegations, he states affirmatively the facts touching his purchase from Pittman, and avers that if plaintiff ever had any right to the possession of the buggy, or any lien thereon, such right had been forfeited by reason of plaintiff's "fraud, neglect, and laches" in permitting Pittman to retain possession of it under a claim of ownership, and to sell it to the intervener without notice to him, constructively or otherwise, of its claim. To this complaint plaintiff interposed a denial. The contract was not recorded with the clerk of Silverbow county. At the trial the plaintiff rested its case upon the contract and proof of default in payment according to its terms, and that there was due and still unpaid, of the purchase price named therein, the sum of $65, with accrued interest. It further appeared that Fitchett purchased the buggy from Pittman of July 15, 1896, for $65, without knowledge of plaintiff's claim, and that some time about the close of the year he sold it to the defendant Tam under an agreement to protect her against any suit by the plaintiff. All payments upon the purchase price were made by Pittman at different times after the sale to Fitchett, and at least one of them, amounting to $25, was made after the agents of plaintiff were informed that Fitchett had purchased the buggy. In the early part of December, 1896, one of the agents of plaintiff demanded of Fitchett that he either pay the balance due under the contract, or deliver up the buggy to plaintiff. Fitchett replied that he would do neither, that he had purchased the buggy honestly, that it was his, and that the only way plaintiff could get it "was at the end of two lawsuits." There was no proof showing what, if any, interest Lemon had under the contract. Pittman was in possession of the buggy until it was sold to Fitchett. Defendant Tam took no part in the trial of the cause. It was assumed by the court and both parties that Fitchett was the defendant in interest, and he was so treated. After the evidence was heard, counsel for defendant Fitchett moved the court to direct a verdict in his favor upon the following grounds: (1) That the contract upon which plaintiff relies for recovery is a contract for a lien only, and that no recovery can be had upon it under an allegation of ownership; (2) that, though binding as between the parties, it is void as to innocent purchasers; (3) that it is void because it provides for a forfeiture, upon default in the payment of the purchase price named therein, of all payments already made, and deprives the makers of the right of redemption; and (4) that plaintiff lost any right it had to enforce the contract by reason of its neglect to do so promptly after default, and by accepting payments from Pittman with knowledge of his sale to Fitchett. This motion was sustained generally, and the jury were instructed to find upon the question of value and damages only, and to render a verdict accordingly. The jury found the value to be $65, and the damages $1. Judgment was thereupon entered. The plaintiff has appealed from this judgment, and an...