Bill Smith, Inc. v. Cox, 4051

• Decision Date: 15 July 1964
• Docket Number: No. 4051,4051
• Parties: BILL SMITH, INC., Appellant, v. Robert O. COX, Charles S. Waugh, Robert S. Bass, Jr., Appellees.
• Court: Florida District Court of Appeals

Page 497

166 So.2d 497

BILL SMITH, INC., Appellant, v. Robert O. COX, Charles S. Waugh, Robert S. Bass, Jr., Appellees.

No. 4051.

District Court of Appeal of Florida, Second District.

July 15, 1964.

John Emerson, Jr., of Parks & Emerson, Naples, for appellant.

Frank Pavese, of Pavese & Waldorf, Ft. Myers, for appellees.

ALLEN, Judge.

Appellant, plaintiff in an action to recover a sum allegedly due under a conditional sales contract, appeals a judgment dismissing its amended complaint, with prejudice.

Appellant sold appellees certain chattels for a stated consideration. Following a 'down payment's the parties executed a 'conditional sales contract' providing for payment of the deferred balance in twentyfour installments. This contract of conditional installments. This contract contained

'* * * This is a contract of conditional sale, and not a mortgage, and title is expressly agreed to remain in the Dealer, or his assign, until all sums shall first have been paid in full and in cash. * * *

'* * * If the Buyer shall * * * fail to make any payment when due * * * all sums then unpaid shall be due and payable without notice, and the Dealer or his assigns may at once retake possession of the property, wherever the same may be, and without process of law, and all payments theretofore made shall be retained by the Dealer or his assigns as agreed damages, compensation for the execution of the agreement, and use and hire of the property, and all rights of the Buyer shall be extinguished. Dealer or assigns may take possession of any other property in or connected with this property above described at the time of repossession wherever such other property may be therein and hold the same temporarily for buyer without liability on the part of said Dealer. If the Dealer or his assigns shall retake possession of the property, the Dealer or his assigns may at once resell the same without notice, at public or private sale. Dealer, or assigns shall have the right to bid at such sale, and if proceeds shall be insufficient to pay all sums due, including costs, fees and expenses, the Buyer shall pay such deficiency; if the proceeds shall exceed the same, such excess shall belong to the Buyer. Dealer or his assigns may collect from Buyer the balance unpaid plus costs, fees and expenses, without repossession.' (Emphasis added.)

Appellees, after making three payments, defaulted and returned the chattels to appellant for resale. Appellant resold them, realizing an amount which, after deduction of the expenses of resale, was less than the balance due from appellees under the contract. Suit for this deficiency ensued.

The lower court, apparently of the belief that appellant's retaking the chattels constituted an election of remedies preclusive of an action for the balance of the purchase price, dismissed the cause and this appeal ensued posing as the determinative question whether the emphasized portion of the aforequoted provisions in the contract is valid and enforceable.

In support of its argument that the lower court erred in refusing to permit the alternative means of recovery contemplated by the contract, appellant argues that the cases relied upon by appellees, hereinafter cited, contain only dicta which cannot control, that the great weight of authority in other jurisdictions indicates acceptance of contractual provisions similar to the one upon which it relies and...