Berlin Machine Works v. Dehlbom Lumber Co.

• Decision Date: 24 December 1919
• Citation: 186 P. 513,32 Idaho 566
• Parties: THE BERLIN MACHINE WORKS, a Corporation, Appellant, v. THE DEHLBOM LUMBER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

186 P. 513

32 Idaho 566

THE BERLIN MACHINE WORKS, a Corporation, Appellant, v. THE DEHLBOM LUMBER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

December 24, 1919

CONTINUANCE-CONDITIONAL SALE CONTRACTS.

1. An order granting or denying a continuance will not be disturbed on appeal in the absence of a showing of abuse of discretion and, where there is no evidence of a diligent effort to procure the attendance of a witness, refusal to grant a continuance, because his presence at the trial cannot be procured, is not an abuse of discretion.

2. Conditional sales, like other contracts, are to be construed according to the intent of the parties, as disclosed by the terms employed when they are not ambiguous.

APPEAL from the District Court of the Eighth Judicial District, for Boundary County. Hon. R. N. Dunn, Judge.

Action of replevin. Judgment for plaintiff against defendant for the return of property and, if return thereof cannot be had, for $ 700, and for defendant against plaintiff for the return of certain promissory notes and for $ 662.62. From an order denying a new trial, plaintiff appeals. Judgment modified and order affirmed.

Cause remanded, with instructions. Order affirmed. Each party to pay its own costs on appeal.

Allen P. Asher, for Appellant.

The plaintiff contends that under this contract it has the right to the possession of the resaw without rescinding or canceling the contract, not only for its own protection but also for the protection of the defendant. (Tufts v D'Arcambal, 85 Mich. 185, 24 Am. St. 79, 48 N.W 497, 12 L. R. A. 446; Latham v. Sumner, 89 Ill. 233 31 Am. Rep. 79; Dodge v. Carter, 140 Cal. 663, 74 P. 292; 1 Mechem on Sales, p. 510.)

G. H. Martin, for Respondent.

The court committed error in giving the plaintiff judgment for the possession of the resaw without imposing upon it judgment for the return of the purchase money paid less the cost of returning the resaw to Beloit, Wisconsin. (Latham v. Sumner, 89 Ill. 233, 31 Am. Rep. 79; Mark Means Transfer Co. v. MacKinzie, 9 Idaho 165, 174, 73 P. 135; Peasley v. Noble, 17 Idaho 686, 134 Am. St. 270, 107 P. 402, 27 L. R. A., N. S., 216; Pease v. Teller Corporation, 22 Idaho 807, 128 P. 981; Seanor v. McLaughlin, 165 Pa. 150, 30 A. 717, 718, 32 L. R. A. 467; Manson v. Dayton, 153 F. 258, 82 C. C. A. 588; Preston v. Whitney, 23 Mich. 260; Perkins v. Grobben, 116 Mich. 172, 72 Am. St. 512, 74 N.W. 469, 39 L. R. A. 815; Heine Piano Co. v. Crepin, 142 Cal. 609, 76 P. 493; Richardson v. Great Western Mfg. Co., 3 Kan. App. 445, 43 P. 809; Shafer v. Russell, 28 Utah 444, 79 P. 559; Latham v. Davis, 44 F. 862; Gennelle v. Boulais, 48 Wash. 310, 93 P. 421; American Soda Fountain Co. v. Dean Drug Co., 136 Iowa 312, 111 N.W. 534.)

A conditional sale vendor, when he elects to recover the property, cannot also recover the unpaid purchase price. The remedies are inconsistent and the election to take the property is an abandonment of the right to sue for the purchase price of the property. (Pease v. Teller, supra; Peasley v. Noble, supra.) The appellant, upon rescinding, must put the respondent in statu quo. (35 Cyc. 144; Black on Rescission, secs. 316, 617.)

MORGAN, C. J. Rice and Budge, JJ., concur.

OPINION

MORGAN, C. J.

This cause has been heretofore considered by the court and a decision remanding it with direction to make additional findings and to enter judgment in accordance therewith is reported in 29 Idaho 494, 160 P. 746. Pursuant to that direction the trial court found, in addition to the findings of fact theretofore made, that respondent had, prior to March 1, 1910, paid $ 650 to appellant on the purchase price of the resaw, mentioned in our former opinion, and had, at the time of making the contract for the purchase thereof, executed and delivered to appellant three promissory notes; that appellant has never offered to repay the money, or any part thereof, nor to return the notes, or either of them, and that by the terms of the conditional sale contract, discussed in our former opinion, it was its duty, on rescinding the same, to return the notes and repay the purchase money, less the expense of returning the resaw to Beloit, Wisconsin, which expense the court found to be $ 200. As an additional conclusion of law the court found that respondent is entitled to have the notes delivered to it and to have judgment against appellant in the sum of $ 450, together with interest thereon. Judgment was entered in favor of appellant for the possession of the resaw, and, in case delivery thereof cannot be had, for $ 1,350, its value, less $ 650; that respondent have possession of the notes and judgment against appellant for $ 450 principal and $ 212.62 interest. Appellant moved for a new trial and has appealed from an order denying its motion.

Appellant moved for a postponement of the trial and in support thereof presented the affidavit of its manager to the effect that on the evening of November 18, 1914, while in Boise, he received a telegram from his attorneys advising him of the setting of the case for trial on the 21st of that month; that he at once notified E. T. McDonald, by telegraph, at Vancouver, B. C., of the time and place of the trial and urged him to be present, and was thereafter informed by him, by wire, that he could not arrange his affairs so as to be present on such short notice. The affidavit further discloses that arrangements had theretofore been made with McDonald, who was the agent of appellant at the time the resaw in question was sold and who negotiated the sale, to attend the trial and testify.

Respondent contends that the facts set forth in the affidavit to which it is alleged McDonald would testify, if present, are insufficient to have justified the court in granting the continuance because they relate to breach of warranty and there is no such issue in the case. The contention appears to be well founded, and would probably be...