Deichert v. Euerby

• Decision Date: 19 December 1933
• Docket Number: 6015
• Citation: 54 Idaho 14,27 P.2d 981
• Parties: N. J. DEICHERT, Appellant, v. A. G. EUERBY, Respondent
• Court: Idaho Supreme Court

27 P.2d 981

54 Idaho 14

N. J. DEICHERT, Appellant, v. A. G. EUERBY, Respondent

No. 6015

Supreme Court of Idaho

December 19, 1933

CHATTEL MORTGAGES-BILL OF SALE AND CONDITIONAL SALES CONTRACT-MORTGAGE OR ABSOLUTE CONVEYANCE-QUESTION FOR JURY-MOTION FOR NONSUIT.

1. Whether bill of sale and conditional sale contract respecting same property constitute mortgage or absolute conveyance and contract to reconvey is for jury on conflicting evidence in action at law (I. C. A., secs. 44-801, 44-804).

2. In determining whether nonsuit should be granted, evidence must be considered as whole.

3. Motion for nonsuit admits truth of plaintiff's evidence and every fact it tends to prove and entitles him to benefit of all favorable inferences jury might draw from evidence.

4. Evidence, in action for conversion of automobile, held sufficient to take to jury question whether plaintiff's bill of sale thereof to defendant and latter's contract for conditional sale thereof to plaintiff constituted chattel mortgage (I. C. A., secs. 44-801, 44-804, 44-805).

5. Plaintiff, not tendering amount of his indebtedness to defendant in action for conversion of automobile disposed of by defendant, nor offering to deduct amount from value of car, held not precluded from urging that his bill of sale thereof to defendant and contract for conditional sale thereof to plaintiff by defendant constituted mortgage securing indebtedness (I. C. A., secs. 44-801, 44-804).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action for conversion. Judgment for defendant. Reversed.

Judgment reversed, with direction. Costs awarded to appellant.

F. C Keane, for Appellant.

The transaction between appellant and respondent, though couched in the form of a bill of sale and conditional sales contract was simply a device to secure the repayment of the sum respondent claimed from appellant. (Bonestell v. Western Automotive Corp., 69 Cal.App. 719, 232 P. 734; Blodgett v. Rheinschild, 56 Cal.App. 728, 206 P. 674.)

A motion for nonsuit admits all facts of which there is any evidence, and all facts which the evidence tends to prove and the evidence must be interpreted most strongly against defendant. (Bank of Commerce v. Baldwin, 12 Idaho 202, 85 P. 497; Pilmer v. Boise Traction Co., 14 Idaho 327, 94 P. 432, 125 Am. St. 161, 15 L. R. A., N. S., 254; Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044.)

Chas. E. Horning, for Respondent.

A conveyance from appellant to respondent with a simultaneous agreement on the part of respondent to reconvey upon certain specified conditions did not ipso facto constitute a mortgage, the test being whether the relationship of debtor and creditor continued to exist; if it did not, the conveyance was absolute. (Shaner v. Rathdrum State Bank, 29 Idaho 576, 161 P. 90; Clinton v. Utah Construction Co., 40 Idaho 659, 237 P. 427.)

MORGAN, J. Budge, C. J., and Givens, Holden and Wernette, JJ., concur.

OPINION

MORGAN, J.

May 13, 1930, appellant, to evidence indebtedness he owed respondent, gave him his promissory note and, to secure the payment thereof, pledged to him two diamond rings and gave him a mortgage on an automobile. February 20, 1931, the debt being due and unpaid, respondent, by agreement between the parties, took title to the rings and, in consideration thereof, credited $ 500 toward the payment of appellant's indebtedness. As part of that transaction appellant gave respondent an instrument, in form a bill of sale for the automobile, and respondent gave appellant an instrument in form a conditional sale contract which provided, in effect, that if the latter should pay the former, in eight monthly instalments, on the dates therein specified, the amount of the indebtedness which remained unpaid, after deducting the value of the rings, his title to the automobile would become absolute. The automobile remained in appellant's possession, and the original note was surrendered to him. He paid four of the instalments, but defaulted in the payment of the others and, on December 5, 1931, respondent took possession of the car and traded it for a truck. This action was commenced to recover the value of the automobile. At the close of testimony adduced on behalf of appellant respondent moved for a nonsuit, which was granted and judgment in his favor was entered, from which this appeal was taken.

Appellant contends the bill of sale and conditional sale contract were given to secure the payment of his indebtedness to respondent, and constitute a chattel mortgage. The nonsuit was granted on the theory that evidence adduced on behalf of appellant showed he gave respondent the bill of sale and thereby paid and extinguished his indebtedness, and respondent then sold the automobile to him and the bill of sale and conditional sale contract did not constitute a mortgage, but that each of these instruments was what it appears on its face to be.

The testimony of appellant, taken as a whole, tends to show the bill of sale and conditional sale contract were executed and delivered to secure the payment of the balance he owed respondent after deducting the $ 500 credited on the debt when title to the rings was transferred in part payment. A portion of his testimony, on cross-examination, taken alone, tends to show the bill of sale was made in payment of the debt, and the conditional sale contract evidenced an agreement that respondent would transfer title to the automobile to appellant upon the performance of the conditions thereof by the latter, and might repossess it in the event of his failure to perform said conditions. Apparently the action of the court sustaining the motion for nonsuit is based, largely, on this fragment of the evidence. It is as follows:

Q. Now, Mr. Deichert, isn't it a fact that on the 20th day of February, 1931, you executed a bill of sale in Wallace, Idaho, by which you conveyed that automobile to Mr. Euerby?

"A. I did this way--

"Q. Just answer the question. Did you or did you not?

"A. Yes, sir.

"Q. Let me ask you this further. Isn't it a fact that on the same date you and Mr. Euerby entered into a conditional contract of sale by which he agreed to convey that car back to you upon your payment of the sum of $ 428.30 on monthly installments?

"A. Yes."

That testimony tends to show the bill of sale and conditional sale contract were not considered security for the payment of money and are not to be construed to be a mortgage. However, appellant further testified:

"Q. And isn't it a fact that you had possession of the automobile after February 20, 1931, under that conditional sales contract?

"A. That conditional sales contract, I signed that in order to secure Mr. Euerby with the car. I didn't know whether that was a conditional sales contract at all.

"Q. You didn't know?

"A. No.

"Q. Where was you when you signed it?

"A. In your office.

"Q. You didn't know what it was?

"A. No.

"Q. You didn't read it?

"A. No.

"Q. You didn't have any idea what it was?

"A. I know I signed some papers in order to secure Euerby."

With respect to the conversation leading up to the execution of the bill of sale and conditional sale contract, he testified:

"A. The conversation was this, I went to Euerby and I said to him, I owe you this money, I am pretty hard up right at the present time, and he says to me, Well, how about those diamonds, and I said to him, What will you allow me for them diamonds, I want to get this straightened up; he says, I don't know, how is five hundred dollars and I says they ought to be worth more than that. I said, If you will allow me five hundred and give me time on the balance, and he said he would. He said, Well, I will have the papers fixed up and give you time on the rest of it."

As a part of appellant's case respondent was called for cross-examination pursuant to the provisions of I. C. A., sec. 16-1206, permitting a party to a civil action to be examined by the adverse party as if on cross-examination, and allowing his testimony to be rebutted by the party so calling him. His testimony, taken as a whole, tends to support his contention that the bill of sale and conditional sale contract do not constitute a mortgage, but he testified, in part, as follows:

"Q. You state you had a conditional sales contract on this car?

"A. Yes, sir.

"Q. And how did you come to give a...