Lacey v. Great Northern Ry. Co.

• Decision Date: 25 April 1924
• Docket Number: 5413.
• Citation: 225 P. 808,70 Mont. 346
• Parties: LACEY v. GREAT NORTHERN RY. CO.
• Court: Montana Supreme Court

225 P. 808

70 Mont. 346

LACEY v. GREAT NORTHERN RY. CO.

No. 5413.

Supreme Court of Montana

April 25, 1924

Rehearing Denied May 8, 1924.

Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.

Action by Jack Lacey against the Great Northern Railway Company.Judgment for plaintiff, and defendant appeals.Reversed and remanded.

I Parker Veazey, Jr., and W. L. Clift, both of Great Falls, H C. Hopkins, of Butte, and R. H. Glover, of Great Falls, for appellant.

N. A. Rotering, of Butte, for respondent.

PER CURIAM.

This action was instituted by the plaintiff to recover for an injury to an Essex automobile the sum of $1,300, because of the alleged negligent operation of a train over the railroad tracks of the defendant company in the city of Butte.The cause was tried to a jury which rendered a verdict in plaintiff's favor for $1,000.Judgment was entered upon the verdict, and the appeal is from the judgment.

It appears that on the 6th day of August, 1920, the plaintiff sold to Louis Massi the automobile at the agreed price of $1,593.29, upon a conditional sale contract which was filed for record in the office of the county clerk of Silver Bow county on the next day.By the terms of the agreement Massi paid $650 to plaintiff upon the signing thereof, receipt of which was acknowledged.The balance payable was $943.29 as follows: $104.81 one month after date, and a like amount in two, three, four, five, six, seven, eight and nine months.Possession of the automobile was delivered to the purchaser who agreed not to sell, attempt to sell, or otherwise dispose of the same, nor to permit it to be removed from his possession.In paragraph 9 of the agreement it was "distinctly understood and agreed that, should said purchaser fail to make any of the said payments to said seller, or should said purchaser fail to perform any of the terms or conditions thereof in the manner and within the time herein provided for, said seller may declare the entire purchase price due and payable without notice, and may take immediate possession of said automobile, attachments, accessories, and equipment, and in either or both events all the rights, titles, and equities of said purchaser in and to said automobile shall immediately cease and determine, and said seller shall be released from all obligation to transfer or deliver said automobile to said purchaser, and all sums of money theretofore paid by said purchaser to said seller hereunder shall remain the sole property of said seller, and shall be considered as compensation for the use of said automobile by said purchaser."

From the evidence it is clear that at the time of the accident Massi, the purchaser, was in the actual physical possession of the automobile; also that plaintiff had not declared a forfeiture, nor is there any evidence that he intended to do so.And it appears that plaintiff never took possession or asserted the right of possession of the automobile after its delivery to Massi until after the accident.

On November 17, 1920, Massi began suit against the railway company for the sum of $1,985 on account of damages to this automobile.While the suit was pending, plaintiff, then knowing that Massi was maintaining the suit, had two conversations with L. P. Donovan, one of Massi's attorneys in the case, as he, plaintiff, "wanted some arrangements made for his protection," according to Mr. Donovan's testimony.The result was that Massi, in the presence of plaintiff, gave to Nolan & Donovan an order in writing for $666.44, being the amount then due him from Massi upon the purchase price of the automobile.Subsequently the case of Massi against the railway company was settled; the defendant company paying to Messrs. Nolan & Donovan, as Massi's attorneys, the sum of $800, which, after deducting their fees, they turned over to Massi.

The first question which presents itself is whether in view of the foregoing facts the plaintiff has a right to maintain this action.

Whether Massi had made all of the payments required of him, a subject somewhat doubtful upon the record, it is clear that plaintiff had not declared a forfeiture.The mere failure of a conditional vendee to make his payments on time does not change the status of the parties in the absence of an exercise of the option to declare a forfeiture by the vendor.The clause in the contract allowing the vendor to retake the property is not operative in the absence of affirmative action on his part.SeeWheeler & Wilson Mfg. Co. v. Teetzlaff,53 Wis. 211, 10 N.W. 155;Leaf v. Reynolds,34 Idaho, 643, 203 P. 458;Teter v Thompson,57 Cal.

App. 329, 207 P. 260.It follows that at the time of the accident Massi had the legal right to the possession of the automobile.That as conditional vendee he had the right to maintain his action is beyond question.24 R. C. L. 496.

The law applicable to seller and buyer under a conditional sale contract is well settled.The risk of loss or injury to the chattel from a third person falls upon the buyer in possession, who has the beneficial incidents of title.The seller is under no obligation to reclaim or retake the damaged chattel; he has done all he was to do, except to receive payment of the purchase price.The purchaser has received all that he was to receive as the consideration of his promise to pay.Consequently, the seller is allowed to recover from the buyer the full price due, less installments paid.The conditional vendor has a right of action for damages upon the object of the sale whether the tort-feasor be the conditional vendee or a third person.But the measure of the vendor's damages in such case is only the amount of the price unpaid, not, however, exceeding the value of the goods.Williston on Sales, § 333;Elder v. Woodruff Hardware & Mfg. Co.,9 Ga.App. 484, 71 S.E. 806;Higdon v. Garrett,163 Ala. 285, 50 So. 323;Loughlin v. Brassil,187 N.Y. 128, 79 N.E. 854.The conditional buyer having the risk, and being obligated to pay the full price to the seller, may bring action against the tort-feasor and recover as damages the full value of the chattel.Williston on Contracts, § 965;Williston on Sales, §§ 304, 333.

There is no doubt that with plaintiff's knowledge and express consent Massi was free to pursue his action against the defendant for a recovery of all the damages following from the alleged tort.Massi's obligation was then to pay to plaintiff the fruits of the litigation to the extent of the amount due on the contract; but whether the order given by Massi on Nolan & Donovan was received and accepted by plaintiff in full settlement of the amount due him may not be determined upon this record.It is fair to infer that, if Massi did not recover from the railway company, his debt to plaintiff would not be discharged by the order.It is also possible to infer from the record that plaintiff simply took the order as additional security for the amount due him from Massi; he had reserved title in...