Charles Lippincott & Co. v. Rich

• Decision Date: 27 March 1899
• Citation: 56 P. 806,19 Utah 140
• Parties: CHARLES LIPPINCOTT & COMPANY, APPELLANTS, v. E. E. RICH AND WASATCH DRUG COMPANY, A CORPORATION, RESPONDENTS
• Court: Utah Supreme Court

56 P. 806

19 Utah 140

CHARLES LIPPINCOTT & COMPANY, APPELLANTS, v. E. E. RICH AND WASATCH DRUG COMPANY, A CORPORATION, RESPONDENTS

Supreme Court of Utah

March 27, 1899

Appeal from the Third District Court, Salt Lake County, Hon. A. N Cherry, Judge.

Action by plaintiff in claim and delivery to recover possession of a certain soda fountain and for damages for its detention.

From a judgment for defendants plaintiffs appeal.

Reversed and remanded.

C. S Patterson, Esq., for appellant.

That the deed of assignment empowering the assignee to sell on credit is fraudulent and void, see Beus v Shaughnessy, 2 Utah 492; Sphrecht v. Parsons, 7 Utah 107.

The appellant was not bound to accept any tender made at the time and in the manner alleged in the answer. Dermott v. Jones, 2 Wall., 1; School Trustees v. Bennett, 27 N.J.L. 513; Adams v. Nichols, 19 Pick., 275; Crane v. Railway Co., 59 Ind. 165; Millard v. Morse, 32 Pa. 506; Railway Co. v. Fort Scott, 15 Kan. 435; Durland v. Pitcairn, 51 Ind. 426; Fredenburg v. Turner, 37 Mich. 402.

A waiver unsupported by a consideration is not binding. Belknap v. Bender, 75 N.Y. 453 (31 Am. Rep. 476); Insurance Co. v. La Croix, 45 Tex. 168; Dunning v. Mauzy, 49 Ill. 368; Lantz v. Insurance Co., 139 Pa. 546; Emerson v. Slater, 22 How. (U.S.), 41; Henning v. Insurance Co., 47 Mo. 431; Flanders v. Fay, 40 Vt. 317; Bryan v. Hunt (Tenn.), 4 Sneed, 546; Adler v. Friedman, 16 Cal. 140; Mc Kinstry v. Runk, 12 N. J. Eq., 60. Courtenay v. Fuller, 65 Me. 158.

The vendor is entitled to possession as soon as the condition is broken. French v. Osmer (Vt.), 32 A. 254. The rule is very general and uniform that the condition precedent must be fully and strictly performed before the party on whom its fulfillment is incumbent can call on the other to comply with his promise. 2 Benj. on Sales (4th ed.), Sec. 858; Dermott v. Jones, 2 Wall. 1; Foundry v. Hovey, 21 Pick., 417; Crane v. Railway Co., 59 Ind. 165; Collins v. Delaporte, 115 Mass. 159; Millard v. Morse, 32 Pa. 506; Railway Co. v. Fort Scott, 15 Kan. 435; Durland v. Pitcairn, 51 Ind. 426; Husted v. Craig, 36 N.Y. 221; Fredenburg v. Turner, 37 Mich. 402.

In case of a conditional sale third parties can not complete the contract. Chase v. Pike, 125 Mass. 117; Am. & Eng. Enc. of Law (2d ed.), 486, and numerous cases there cited; Ballad v. Burgett, 40 N.Y. 314; Coggill v. Railway Co., 3 Gray, 545; Sumner v. Cotty, 71 Mo. 121; Hodson v. Warner, 60 Ind. 214; Cole v. Berry, 42 N.J.L. 308; Sanders v. Kiber, 28 Ohio St. 630; Kohler v. Hays, 41 Cal. 455; Cardinal v. Edwards, 5 Nev., 36; Singer v. Graham, 8 Ore., 19.

In case of conditional sale title to property does not pass to an assignee for the benefit of creditors. Rogers v. Whitehouse, 71 Me. 222.

Especially is this true where the assignor is in default. Am. & Eng. Enc. of Law (2d ed.), Vol. 6, 494, and cases there cited; Campbell v. Walker, 22 Fla. 412; Herrign v. Moore, 17 So. 385.

The reason for this rule is found in the fact that an assignee can not be compelled to complete any of the executory contracts of his assignor. Am. & Eng. Enc. of Law, Vol. 3, p. 113; Wilhelm v. Byles, 60 Mich. 561.

Messrs. Bennett, Harkness, Howat, Bradley & Richards, for respondent.

The law is well settled that where it is apparent that an actual production of the amount necessary to be tendered would be useless, that it is unnecessary to go through the formality of making an actual tender, if the uselessness of the act is shown by the party to whom the money is due. Smith v. Old Dominion Co., 26 S.E. 40; Johnson v. Garlichs, 63 Mo.App. 578.

It is complained that the court erred in refusing to give the following instruction requested by the plaintiff:

"The plaintiff is entitled to choose his own paymaster, and was not bound to accept any offer from any person other than the original purchaser of the fountain."

This certainly does not state the law. It has been uniformly held that where property is sold, and the title retained in the vendor until the purchase price is paid, and the vendee executes notes, which are held as collateral security for part of the unpaid purchase price, that although the vendor retains the legal title, the vendee may sell his interest before condition broken, and the sub-vendee acquires all the rights held by the vendee, and may tender performance and perform all the conditions which might have been performed by the original vendee, and be subject to the same conditions and forfeitures. Benj. on Sales, p. 269; Tiedeman on Sales, p. 235; Newhall v. Kingsberry, 131 Mass. 445; Lamber v. Mc Cloud, 63 Cal. 164; Hurd v. Fleming, 34 Vt. 169; Carpenter v. Scott, 13 R. I., 447.

The case of Chase v. Pike, 125 Mass. 117, cited by appellant to support the statement that in case of a conditional sale third parties can not complete the contract, does not seem to be in point.

While the vendor held the legal title, the vendee had an equitable interest therein, subject to performance of the conditions, and the vendor had the legal right as trustee for his vendee under the conditional sale, and upon tender of performance at that time was obliged to transfer the legal title to the vendee. Whittier v. Stege, 61 Cal. 238.

Miner, J., delivered the opinion of the court. BARTCH, C. J., and BASKIN, J., concur.

OPINION

Miner, J.

STATEMENT OF FACTS.

This is an action by the plaintiff upon claim and delivery to obtain from defendants possession of a soda fountain, and damages for its detention. The action was commenced April 7, 1897. The defendants answer and claim under a sale from Horn and the assignee of the maker of the contract. Defendants also claim they made tender of payment after demand of possession. It appears from the record that on January 10, 1896, Horn and wife were doing business at Salt Lake City under the name of Wasatch Drug Company. On that day they purchased from the plaintiff, Lippincott and Company, the soda fountain in question by contract of conditional sale for the sum of $ 805, paying down the sum of $ 230, and giving a large number of notes for the balance, payable at the Bank of Commerce. Note number 8 for $ 10 matured January 1, 1897; note number 9 for $ 10 matured February 1, 1897; note number 10 for $ 10 matured March 1, 1897, with interest at six per cent from May 1, 1896, amounting to $ 1.60. These three notes, amounting to $ 31.60, principal and interest, were past due when this action was commenced, and the first one was past due when the assignment hereinafter mentioned was made. All prior notes had been paid, but many notes were not yet due. The contract provided that if the notes were not paid at maturity Lippincott and Company might enter and take the property without process of law, and that the title to the property did not pass, but remained in Lippincott and Company until payment of all the notes was made. On January 5, 1897, Horn and wife made a deed of assignment of all their property to John B. Forbes for the benefit of their creditors. The assignment provided, among other things, that the assignee should sell and dispose of the property assigned for cash at private or public sale, or on time, with good security, if sold in bulk, as he might deem most beneficial to the interests of the creditors, and convert the same into money. On March 20, 1897, while the soda fountain was in possession of Forbes, the assignee, the appellant, by his attorney, served on Forbes a written notice disaffirming the sale and demanding possession of the soda fountain, and tendered back the unpaid notes. Forbes refused to comply with the demand, and at the same time tendered plaintiff's attorney thirty dollars in money, that being the face of the notes without interest, but not including interest, and such tender was refused, the attorney stating at the time that thirty dollars was not enough to pay the notes. On March 22, 1897, Forbes, the assignee, sold and assigned the property to respondent, E. E. Rich, who subsequently sold to the respondent the Wasatch Drug Company, a corporation in which Rich is a stockholder. On the 27th day of March, 1897, the attorney for the appellant demanded the property from Rich, who refused to deliver it, but offered to pay the notes in full, but made no tender, and was informed by the attorney that he was too late; that he wanted the fountain. After trial, judgment was rendered in favor of the defendants, and plaintiffs appealed.

After stating the facts, Miner, J., delivered the opinion of the court:

The respondents, defendants below, to maintain their defense, introduced in evidence the deed of assignment from Horn and the Wasatch Drug Company to Forbes, to which appellant objected on the ground that it was fraudulent and void as to creditors and as to the appellant, and that the assignee therein was empowered to dispose of the assigned property for cash at public or private sale, or on time, with good security if sold in bulk, as the assignee might deem most beneficial to the interests of the creditors. The objection was overruled and the assignment introduced in evidence.

In one respect the appellant was a creditor of the assignor. He could sue and recover on his unpaid notes, or in his discretion take the property into his own possession after default. After the assignment he demanded and sought to recover possession of the property. The assignee for the benefit of creditors succeeded to such rights only as the assignor had at the time of the assignment. He acquired no title to the property held by the assignor under a contract of conditional sale when the title thereto had not yet been vested in the assignor by the performance of the condition. Under such circumstances the vendee under such contract of conditional sale can not sell...