Jeffries v. Pankow

• Citation: 223 P. 745,112 Or. 439
• Parties: JEFFRIES v. PANKOW.
• Decision Date: 11 March 1924
• Court: Supreme Court of Oregon

223 P. 745

112 Or. 439

JEFFRIES v. PANKOW.

Supreme Court of Oregon

March 11, 1924

In Banc.

Appeal from Circuit Court, Tillamook County; Geo. R. Bagley, Judge.

Action by A. L. Jeffries against Charles F. Pankow. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Webster Holmes, of Tillamook, for appellant.

Botts &amp Winslow, of Tillamook, for respondent.

BURNETT J.

The defendant is a dealer in automobiles. He agreed to sell to the plaintiff an automobile under a conditional sales contract which contained the following provisions:

"The said property and the whole thereof shall remain the property of said seller and title to said property shall not vest in the buyer until the unpaid balance of the purchase price and any judgment or decree rendered thereon is wholly paid, together with taxes, assessments, insurance costs and expenses of litigation as above mentioned, and in case the buyer makes default of payment of said amounts, * * * the buyer shall on demand deliver the property to the seller or his assigns in as good condition as when received, reasonable use and wear excepted, the said seller or his agent or assigns shall have the right, without notice or demand, to take immediate possession of said property, * * * all money paid on the purchase price thereof shall at the option of the seller belong to the seller or his assigns as liquidated damages for nonfulfillment of this contract by the buyer and for loss in value of said property and for the use and rental thereof while being in the possession of the buyer and any claim or equity of the buyer in said property shall utterly cease and determine without reclamation or compensation."

With this contract, which is admitted by both parties, the defendant delivered to the plaintiff the automobile therein described. Afterwards, the plaintiff being unable to make payment of the installments due, the defendant retook the property into his own possession. Complaining now, the plaintiff charges that the redelivery of the property to the defendant was on the agreement that the latter would take it try to sell the same, obtain the best available price, and that from the proceeds of the sale plaintiff should receive all that was obtained over and above $1,100 then still owing to the defendant on the purchase price.

The essence of the plaintiff's grievance is contained in this allegation of the complaint:

"That defendant without selling said car except as hereinafter stated, on or about the 20th day of July, 1920 willfully appropriated and converted said property to defendant's own use, and has ever since said date used said property as his own property, and plaintiff waives any tort committed by defendant in said conversion and appropriation of said property, and elects to charge defendant with the reasonable value of said property, less the balance owing on the purchase price thereof by plaintiff, as for an implied purchase by defendant of plaintiff's interest therein."

The answer set up the contract in full, the same being in writing, attaching a copy thereof as Exhibit A, and, as stated, the plaintiff admits that this was the contract under which the parties operated. Other issues were formed in the pleadings in the nature of res judicata and estoppel based upon litigation for the collection of a note given as part of the purchase price, but it is not necessary to consider those questions.

Under the contract, the property remained that of the defendant seller. It was admitted that the buyer made default in his payment due on the contract....