Brandtjen & Kluge, Inc. v. Pope

• Citation: 192 S.W.2d 496,28 Tenn.App. 679
• Parties: BRANDTJEN & KLUGE, Inc., v. POPE.
• Decision Date: 14 June 1945
• Court: Tennessee Court of Appeals

192 S.W.2d 496

28 Tenn.App. 679

BRANDTJEN & KLUGE, Inc., v. POPE.

Court of Appeals of Tennessee, Western Section.

June 14, 1945

Certiorari Denied by Supreme Court December 8, 1945.

Appeal from Chancery Court, Shelby County; L. D. Bejach, Chancellor.

Action of replevin by Brandtjen & Kluge, Inc., against John W. Pope doing business as the Golden Rule Printers, who filed a cross-bill to recover damages for wrongful issuance of a writ of replevin. Decree for defendant, and complainant appeals.

Affirmed and remanded.

Lee A. Hardison, Jr., and Granville Farrar both of Memphis, for appellant.

James F. Bickers, of Memphis, for appellee.

BAPTIST Judge.

This is an action of replevin instituted by bill in the Chancery Court of Shelby County. The parties will be called complaint and defendant as in the Chancery Court.

It is alleged that the complainant, Brandtjen & Kluge, Inc., is engaged in selling presses and printing equipment by conditional sales contracts.

That on January 15, 1944, it sold and delivered to the defendant John W. Pope, D. B. A. Golden Rule Printers, certain property including printing press, press feeder and other equipment, which is particularly described in the bill.

That the sale was made under a conditional sales contract, which provided for acceleration of the outstanding balance in event of default in the payment of any installment when due.

That the defendant signed the contract evidencing a deferred balance of $1072.45 and executed notes to cover this balance.

That the payments due July 15, 1944, and August 15, 1944, have not been paid.

That by reason of the default in payment and otherwise unsatisfactory condition of the account, the complainant has elected to declare the balance of $683.64 due and that the defendant unlawfully detains the property.

A writ of replevin was issued and executed.

The defendant filed an answer and cross bill in which he alleges that he has complied with the terms of the contract and has paid all of the notes due and one in advance, all of which the complainant knew.

That he has been damaged by loss of business and inability to fulfill contracts, and do other business employing the use and aid of the property replevined, and demanded a jury to try the issues of fact.

Two issues of fact were submitted to a jury, which, with the verdict on same, are as follows:

'Was complainant on August 30, 1944, entitled to the immediate possession of the property described in the Bill in this cause and in the Writ of Replevin issued in this cause? Answer: No.

'II. If your answer to Issue I is No; then answer: What is the amount of damages sustained by defendant resulting from the wrongful issuance of the Writ of Replevin in this cause? Answer: $225.00'

The complainant's motion for a new trial was overruled and the Chancellor entered a decree in accordance with this verdict from which the complainant has appealed and assigned errors.

The first four assignments of error contend that the verdict and decree on these issues are contrary to the law and the evidence and that there is no material and competent evidence to sustain the verdict.

It is unnecessary to cite authorities on the rule that the verdict of a jury, satisfactory to the trial judge in a civil case, where there is conflicting evidence, will not be set aside by the appellate court, if there is any material legal evidence to sustain it, and that the verdict of a jury in the Chancery Court has the same force and effect as a verdict in a law court.

The contract of sale provided for the payment of $1072.45 as follows: $50 payable with order, $163.81 upon the execution and delivery of the agreement, twenty-three notes of $35 each and one final note of $53.64. The first note was due February 15, 1944, and one note to become due on the 15th day of each month thereafter for twenty-three months, with interest at six per cent.

The contract provided for acceleration on default in any installment as follows:

'That in case of default in any of the payments of principal, or interest, when due as above specified, and for ten days thereafter, the said first party shall thereupon forthwith have the right to declare this contract at an end, and to take immediate possession of said above described property, and in such case, the said property, as well as all payments of principal, or interest which shall have been made herein, shall belong to, and be retained by said first party as liquidated damages for non-performance of this contract on the part of said second party and for use of and injury to said property.'

After the execution of the contract and the delivery of the machinery a controversy arose between the parties in which the defendant contended that there were certain alleged defects in the machinery. It was claimed that by reason of these defects the machinery was incapable of doing the work which it had been represented as capable of doing at the time of the sale. The contention was that by reason of the defects a part of the machinery at times would not work automatically and would have to be operated by hand, causing a loss of time.

The defendant contended also that there had been unreasonable delay in the installation of the machine and for this reason notified the complainants that he would take thirty days grace in the payment of the notes, that is that the due date would be extended thirty days, to which there was no stated objection on the part of the complainants.

Another controversy arose on the following clause in the contract:

'Said property to be kept insured against loss or damage by fire, and to have inserted in the policy loss, if any, payable to Brandtjen & Kluge, Inc., as its interest may appear; said policy to be delivered to said first party.'

In a number of letters to the defendant the complainant insisted tha the defendant furnish the insurance protection provided in the cause set out.

The defendant declined at one time to furnish the insurance until the alleged defects in the machinery were removed and later in letters requested the complainant to inform him of the amount of insurance wanted and offered, on receipt of that information to procure the insurance.

Five of the notes in question were paid by the defendant by mailing checks to the complainants at their office in St. Paul, Minnesota. The first note which was due February 15, 1944, was thus paid, the payment being received by the complainant on March 15, 1944, accepted and marked 'paid' March 20, 1944. Payment of the second note due March 15, 1944, was mailed and received by complainant on April 21, 1944, accepted and marked 'paid' May 25, 1944. Payment of the third note due April 15, 1944 was mailed, received, accepted and marked 'paid' May 25, 1944. Payment of the fourth note due May 15, 1944, was mailed, accepted and marked 'paid' July 6, 1944. Payment of the fifth note due June 15, 1944, was mailed, accepted and marked 'paid' August 4, 1944.

The letter enclosing this last mentioned payment was written July 31, 1944, and contained the following statement:

'Am not going to pay as the notes come due, as I have before told you, until you play square with me by seeing that I get what I bought--a rebuilt C & P press with a new (not a broken) Kluge feeder.'

On August 14, 1944, the defendant mailed to complainant payment of the sixth note due July 15, 1944, which was received by the complainant on August 15, 1944, and on August 24, 1944, the defendant mailed to complainant payment of the seventh note due on August 15, 1944, which was received by the complainant on August 25, 1944.

On August 10, 1944, the complainant wrote the following letter to the defendant:

'This will acknowledge receipt of your letter of July 31st in regard to your contract account. This letter was referred to me by Mr. R. E. Barnes and Mr. H. A. Brandtjen together with the file in connection with your contract. I was instructed to take action under the contract immediately because of your failure to furnish insurance and your stated intention in your letter to refrain from paying your notes in accordance with your agreement. Our attorney will contract you in respect to this matter shortly.'

It will be noted that this letter makes no claim of delinquency in the payment of the notes, or an intention of the complainant to declare the contract at an end. It will also be noted that the letter advised the defendant that its attorney would contact him shortly, however, the attorney, Mr. Hardison, testified that at the time he received the papers from Brandtjen & Kluge he was instructed not to contact Mr. Pope, and that he did not contact him.

On August 25, 1944, the complainant returned the payment which it had received on August 15th accompanied with the following letter:

'Your letter of recent date has been received together with your check No. 315989 in the amount of $36.18. This is a cashiers check issued by the First National Bank of Memphis, Tennessee, and it is returned to you herewith.

'We notified you of the position taken by us in view of your own stated stand and your defaults. There is nothing this office can do for you now. You must handle this with our local attorney.'

On August 28, 1944, the defendant returned the July payment to the complainant accompanied with the following letter:

'Greatly surprised at your returning remittance for July, which was in keeping with your own proposition to mark up the notes, and also inasmuch as you have also received the August note payment sent you by Express Money Order.

'Am not in default of the contract, except that have not segregated to you any insurance because you have not at any time answered my request of the amount of insurance you want made out to...