Campbell Printing Press & Mfg. Co. v. Walker

• Decision Date: 22 June 1886
• Citation: 22 Fla. 412,1 So. 59
• Parties: CAMPBELL PRINTING-PRESS & MANUF'G Co. v. WALKER, Assignee.
• Court: Florida Supreme Court

1 So. 59

22 Fla. 412

CAMPBELL PRINTING-PRESS & MANUF'G Co. v. WALKER, Assignee.

Florida Supreme Court

June 22, 1886

Appeal from circuit court, Duval county.

The facts of the case are stated in the opinion.

Syllabus by the Court

SYLLABUS

An agreement in writing to sell personal property, the title to which is reserved by the seller until the purchase money is paid by the buyer, is a conditional sale, and does not vest title in the buyer until the performance of the condition to-wit, the payment of the purchase money, notwithstanding that, at the time of making said agreement, possession of the property is delivered by the seller to the purchaser. ^[1]

Neither the act of the legislature of January 30, 1838, nor of January 8, 1853, (McClell. Dig. p. 765, ss 1, 2,) requires such an instrument to be recorded.^[1]

It was not the intention of the act of January 30, 1838, nor of January 8, 1853, (McClell. Dig. p. 765, ss 1, 2,) to give any other construction to an instrument in writing than the parties thereto intended.

An agreement, such as is described in the first head-note, is valid, as against subsequent creditors and bona fide purchasers for valuable consideration, without notice. ^[1]

Quaere as to whether such an instrument is not void as to creditors and bona fide purchasers for a valuable consideration without notice, if not recorded in two years from the delivery of possession of the property, under section 4, act of January 28, 1823, as amended by act of January 7, 1859 (McClell. Dig. p. 212, s 4.)

An assignee, to whom property held by the buyer as described in the first head-note is assigned for the purpose of paying the debts of the buyer, is neither a creditor nor bona fide purchaser.

On a conditional sale, where the seller reserves title to the property until payment of purchase money, on default of payment thereof as stipulated, the seller can maintain an action of replevin therefor.

COUNSEL

M. C. Jordan, A. W. Cockrell & Son, and Fleming & Daniel, for appellant.

Hartridge & Young, for appellee.

Is the contract under which plaintiffs claim in its legal effect a mortgage? Whether the contract in question is or is not a mortgage is to be determined, not by any name the parties may give to the instrument, nor in any particular provision therein contained, but in the ruling intention of the parties. It is the legal effect of the whole instrument which is to be sought for. Heryford v. Davis, 102 U.S. 235; 1 Jones, Mortg. § 253. If by this contract, and the notes therein mentioned, executed by the Ashmeads, the Ashmeads became indebted to the company, and the latter retained the legal title as a security for the said indebtedness of the Ashmeads, then in its legal effect it is a mortgage. It seems to us impossible to read the contract without coming to the conclusion that the Ashmeads became the debtors of the company for the amount of the notes, and the company retained a lien for the security of the debt. If the contract had provided for a return of all the unpaid notes upon a breach of the condition, then the company might well contend that it was a conditional sale. But it will be seen that there is no such provision; and the testimony of Jordan, the attorney for the company, and his clerk, Fox, shows that after default there was a demand of payment, and an effort to collect the debt from the Ashmeads before the assignment, and from the assignee afterwards, accompanied with threats to take the property unless the debt was paid.

Counsel for appellant endeavor to break the force of the case of Heryford v. Davis by arguing that the court based their decision upon the clause providing for a sale of the property and payment of the surplus to the debtor. A careful reading of the case will show that the court held the contract in that case to be a mortgage, because it treated the notes given for the sum agreed on as the price of the cars as a debt absolutely due to the vendors, and the care as a security for the debt. The clause in the contract in that case so dwelt upon by counsel is only one among others which led the court to the conclusion that the notes were a debt absolutely, and the cars a security. We submit that it is too plain to need argument that the notes given by the Ashmeads became a debt absolutely, and the company, by the contract in question, retained the legal title as a security for the debt; hence it is a mortgage. 1 Jones, Mortg. § 258, and authorities cited in note; Heryford v. Davis, 102 U.S. 235. In all doubtful cases the court will construe the contract to be a mortgage, rather than a conditional sale. Jones, Mortg. § 258, and authorities cited in note.

The question as to whether a contract is in its legal effect a mortgage or a conditional sale is of greater importance in this state than in other states, by reason of our statute prohibiting the mortgagee from acquiring possession of the mortgaged property except by purchase at foreclosure sale. But for the statutes, the mortgagee could after default recover personal property mortgaged in an action of replevin and real estate in an action of ejectment. The true and only test of the question of mortgage or no mortgage is, did the contract and notes create the relation of debtor and creditor between the Ashmeads and the company? Jones, Mortg. § 258. The assignee represents the creditors of the Ashmeads, and not the Ashmeads, as contended by the counsel for appellant.

OPINION

McWHORTER C.J.

The appellant brought a suit in the circuit court of Duval county against the appellee for the recovery of a printing-press and appurtenances. There was a joinder of issue on the plea of defendant denying the ownership of the plaintiff, and the plea of 'not guilty.' Verdict and judgment for defendant.

The plaintiff, to sustain his title to the property, introduced the following instrument in writing:

'CAMPBELL PRINTING-PRESS AND MANUFACTURING COMPANY, 45 BEEKMAN ST., NEW YORK.

'145 Monroe St., Chicago.

'Factories:

'Taunton, Mass.,

'Lawrence, Mass. No. 9835.

'The Campbell Printing-Press and Manufacturing Company hereby agree to sell at the sum of $2,340 (two thousand three hundred and forty dollars) to Messrs. Ashmead Brothers, Jacksonville, Florida, one of their Number Two (2) Two-revolution Intermediate Printing-presses, to be delivered boxed on cars at their factory about the fifteenth of June, 1883, complete in all its parts, including one (1) set of heavy newspaper chases to fit the bed of press, all necessary wrenches, overhead steam-fixtures, cylinder packing, one (1) set complete rollers, and one (1) extra set of stocks.

'Messrs. Ashmead Brothers hereby agree to buy said press as above specified, and to pay therefor, on receipt of bill of lading of same, cash $250, (two hundred and fifty dollars,) and the balance in payments, evidenced by notes of the purchaser, bearing legal interest, as follows: Three hundred and forty dollars, ($340,) payable thirty days after delivery of bills of lading; two hundred and fifty dollars, ($250,) payable three months after delivery of bill of lading; two hundred and fifty dollars, ($250,) payable six months after delivery of bill of lading; two hundred and fifty dollars, ($250,) payable nine months after delivery of bill of lading; two hundred and fifty dollars, ($250,) payable twelve months after delivery of bills of lading; two hundred and fifty dollars, ($250,) payable fifteen months after delivery of bills of lading; five hundred and fifty dollars, ($550,) payable eighteen months after delivery of bills of lading.

'The Campbell Printing-press and Manufacturing Company hereby agree to send a man to superintend the erection of said press free of charge, provided Messrs. Ashmead Brothers pay the passage of said man from New York to Jacksonville and back, and his living expenses during such time and while he is engaged in erecting said press.

'The purchaser to deliver said notes with the cash, and to furnish at his own cost proper and suitable foundations. The purchaser agrees to insure said press, (loss, if any, payable to the Campbell Printing-press and Manufacturing Company, as its interest may appear,) and to deposit such policy with the seller.

'It is also agreed that the title to the above-described property shall remain in the seller until the purchase price thereof, and the interest thereon, has been fully paid; and, in case of any default in any of the terms of this contract, the seller shall have the right to take immediate possession of said property.

'CAMPBELL PRINTING-PRESS & MAUFACTURING COMPANY,

'By A. YORGE, Jr.

'ASHMEAD BROS.

'May 8, 1883.'

It appeared from the evidence that possession of the press was delivered by the appellant to the Ashmead Bros., and that they retained the same from the time of the purchase thereof until the twenty-fourth day of April, A. D. 1884, when they made an assignment of all their property of every kind and description to the defendant, Whitfield Walker, for the payment of their debts, and said defendant took possession of and claimed the press and appurtenances under...