Intertype Corporation v. Pulver, 6861.
| Decision Date | 03 June 1933 |
| Docket Number | No. 6861.,6861. |
| Parties | INTERTYPE CORPORATION et al. v. PULVER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hilton S. Hampton, of Tampa, Fla., and Warren B. Parks, of Orlando, Fla., for appellants.
H. R. Hewitt and Jefferson D. Stephens, both of St. Petersburg, Fla., for appellee.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
The Intertype Corporation sued Frank F. Pulver in replevin to recover possession of certain type and typesetting machines which it had delivered to him originally under a conditional sales contract, and upon which it later took a chattel mortgage to secure the balance of the purchase price. It gave a replevin bond as required by state statute (see Comp. Gen. Laws Fla. 1927, §§ 5333, 5335), with the United States Fidelity & Guaranty Company as surety. Pulver, who did not give a forthcoming bond, obtained judgment in the court below for the sum of some $14,000, the difference between what he had paid on the purchase price and $25,000, the agreed value of the property. By the original contract between the parties it was agreed that the corporation retain title until Pulver had given a first mortgage to secure the balance of the purchase price, and in case of his default in making payment that all payments previously made should be applied as liquidated damages. Pursuant to the contract, a mortgage was subsequently given. It provided that in case of default in payment of future installments on the purchase price the corporation should have the right to take immediate possession of the mortgaged property, sell and dispose of it at public auction or private sale, deduct all sums due under the mortgage, and pay over any surplus to Pulver. Pulver having defaulted on his payments, the corporation filed a bill in a state court to foreclose the mortgage. Pulver's answer denying execution of the mortgage was sustained in the trial court by a decree which was reversed by the Supreme Court of Florida, 101 Fla. 1176, 132 So. 830. But before taking an appeal, the corporation brought this replevin suit, obtained possession of the mortgaged property, removed it from the state, and sold it. These facts being called to the attention of the Supreme Court on rehearing, the appeal was dismissed on the ground that the corporation had abandoned its foreclosure suit and removed the subject-matter of it beyond the jurisdiction of the court. 101 Fla. 1180, 135 So. 793. The complications in this case arise out of the foreclosure suit. The corporation and its surety, contending that they had the right to take...
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