Bradshaw v. Kleiber Motor Truck Co.

• Decision Date: 21 November 1925
• Docket Number: Civil 2288
• Citation: 29 Ariz. 293,241 P. 305
• Parties: E. C. BRADSHAW and E. C. BRADSHAW, as Trustee, Appellants, v. KLEIBER MOTOR TRUCK COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

241 P. 305

29 Ariz. 293

E. C. BRADSHAW and E. C. BRADSHAW, as Trustee, Appellants, v. KLEIBER MOTOR TRUCK COMPANY, a Corporation, Appellee

Civil No. 2288

Supreme Court of Arizona

November 21, 1925

APPEAL from a judgment of the Superior Court of the County of Mohave. E. Elmo Bollinger, Judge. Judgment affirmed.

Mr. W T. Sprowls and Mr. C. W. Herndon, for Appellants.

Mr Carl G. Krook, for Appellee.

OPINION

ROSS, J.

On July 26, 1921, at San Francisco, California, the appellee, Kleiber Motor Truck Company, a corporation, sold to J. O'Shea Inc., also of San Francisco, under a conditional sales contract, one Kleiber five-ton motor truck, for the consideration of $6,515.68, $1,000 of which was paid, and the balance agreed to be paid at the rate of $300 per month. Under the terms of the contract the title to property was to remain in the seller until the full purchase price was paid. It was also provided therein that the property should not be removed from the state of California.

Some time after making the contract -- just how long is not shown -- the buyer of the truct removed it, or permitted it to be removed, to Mohave county, Arizona, where it passed into the possession of the Dean Mines Company, and was used by such company for trucking purposes, and was recognized by the public as its property. In August, 1922, a creditor of the Dean Mines Company caused said truck to be seized under attachment, and thereafter, on October 28, 1922, to be sold under execution as the property of the Dean Mines Company, at which sale appellant Bradshaw became the purchaser.

The appellee did not give its consent to the removal of the truck to Arizona, and did not know it had been removed here until November 1, 1922, when it was notified by telegraph of the sale of the truck under execution. Upon receipt of such notice the appellee demanded possession of the truck from J. O'Shea, Inc., and also from appellant Bradshaw. The latter refusing to surrender possession, a replevin suit was instituted, and the appellee, having given the statutory replevin bond, was put in possession of the truck, which it immediately removed to California. At the trial of the replevin suit, judgment was entered in favor of appellee, from which judgment the appellant prosecutes this appeal.

The conditional sales contract was not placed of record in California, because the laws of that state do not require the recordation of such contracts. A contract under the terms of which the buyer is given possession, the title of property to be and remain in seller until paid for, under the laws and decisions of California is not only valid as between the immediate parties thereto, but as to all others, including creditors and purchasers for value.

In 1919 the legislature of this state adopted what is known as the Uniform Conditional Sales Act (chapter 40 Laws of 1919). Under sections 5 and 6 thereof a conditional sales contract not recorded, with the county recorder of the county in which the property is first kept for use, within ten days after its making, is void as to any purchaser from or creditor of the buyer without notice. This provision of the law does not operate, and was not intended to operate, on sales where the seller, the buyer, and the property were at the time in another state, and where it was agreed it should remain and be used. It was intended to operate only on sales of property in this state or property at the time destined for use in this state. Woolley v. Geneva Wagon Co., 59 N.J.L. 278, 35 A. 789. That this is so is made manifest from section 14 of the Uniform Conditional Sales Act, wherein it is provided that, if prior to the performance of the condition the goods are removed from another state into Arizona, the reservation of the property in seller shall be void as to purchasers and creditors described in section 5 of the act, unless the contract or a copy thereof is filed in the filing...