Galbreath v. Mayo
| Decision Date | 23 July 1918 |
| Docket Number | 9218. |
| Citation | 174 P. 517,70 Okla. 252,1918 OK 414 |
| Parties | GALBREATH v. MAYO et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a sale of personal property is made in which the vendor retains the title to the property until the purchase price thereof is paid and takes notes from the purchaser for such purchase price, and upon default in the payment of said notes the vendor brings an action upon said notes, it is an election by the vendor to make such conditional sale absolute and defeats the right of the vendor to maintain action of replevin for said personal property.
An action upon promissory notes cannot be properly joined with an action of replevin, and it is prejudicial error to overrule demurrer for a misjoinder of causes of action to a petition in which such causes of action are joined.
A conditional sale of personal property was made and promissory notes executed for the purchase price of such property, and an action was brought upon said promissory notes in which an action of replevin was joined, and a verdict rendered for the amount found due upon said notes and also for possession of personal property or its value. Held, that it was prejudicial error to enter judgment in accord with such verdict.
Where the verdict of the jury is contrary to law, the court should on proper motion set aside such verdict and order a new trial.
Commissioners' Opinion, Division No. 1. Error from District Court, Coal County; J. H. Linbaugh, Judge.
Action by C. A. Mayo and another, doing business under the partnership name of Mayo Furniture Company, against Robert Galbreath. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.
A. T West, of Oklahoma City, for plaintiff in error.
C. E B. Cutler, of Coalgate, for defendants in error.
Defendant in error brought suit against plaintiff in error, and the cause was tried upon an amended petition.
Hereafter the parties will be designated as they appeared in the trial court.
The salient points of said petition are:
(1) That the defendant was indebted to the plaintiff in the sum of $3,063.95, for furniture, chattels, and equipment now located in the Galbreath Hotel at Bromide, Okl.
(2) That no part of the principal sum due under said contract had been paid, but that the interest for the year ending June 1, 1915, had been paid.
(3) That by the terms of "said contract and mortgage" the defendant agreed and obligated himself to pay the said sum of $3,063.95, and additional sum of 10 per cent. as attorney's fees, if said contract, mortgage, and notes were given or placed in the hands of an attorney for collection, or a suit filed for recovery thereof. That, as a part and parcel of "said contract and mortgage" and subject to all the terms and conditions of same, the defendant made, executed, and delivered to plaintiff 30 promissory notes; said notes in the aggregate amounting to the said sum of $3,063.95. That "in said contract," copy of which is filed herewith, and of which said contract the notes herein are a part of, among other things, the defendant agreed that if any part of said sum due thereunder, or any installment note or any part thereof was not paid when due, this would render the whole sum immediately due, and at any time thereafter the plaintiff might at their option demand payment of the full amount or retake possession of the property sold thereunder. And it was still further agreed, by the terms of said contract, that the title to the property covered by same would not pass to the defendant until said notes and interest were paid in full by the defendant; that the defendant, Robert Galbreath, had broken his contract, in that he had failed and refused to pay said notes; that he had defaulted in the payment of said contract price for said property for which the notes were made so purchased by him, although the plaintiffs have made repeated demands for the payment thereof; that by reason of the default the plaintiffs are entitled to immediate possession of said property for the purpose of foreclosure, under their contract and mortgage, and have a special ownership in same and a lien superior to all others for the payment of said indebtedness by the defendant therein.
The prayer of the petition is:
"For judgment against defendant for the debt, $3,063.95 due under said contract and notes with interest thereon from the 14th day of June, 1914, until paid, for the further sum of $306.39 as attorney's fees provided for in said contract, and for the possession of said property covered by the contract and mortgage for the purpose of foreclosure, finally, that judgment against the plaintiff for their costs herein laid out." Affidavit of replevin was made, and the personal property involved in this litigation taken under a writ of replevin, for which the plaintiff in error executed a redelivery bond and retained the property.
The copy of said contract described in the petition and filed in the cause is as follows:
The defendant demurred to the amended petition upon the ground:
From the view that we take of the case, it is unnecessary to recite the evidence, or the instructions of the court to which exceptions were reserved. The court overruled the demurrer to the...
To continue reading
Request your trial