Leaf v. Reynolds

• Decision Date: 22 December 1921
• Citation: 34 Idaho 643,203 P. 458
• Parties: C. W. LEAF, Respondent, v. C. R. REYNOLDS, Appellant
• Court: Idaho Supreme Court

203 P. 458

34 Idaho 643

C. W. LEAF, Respondent, v. C. R. REYNOLDS, Appellant

Supreme Court of Idaho

December 22, 1921

POSSESSION OF PERSONAL PROPERTY-ACTION FOR-DEMAND-WHEN UNNECESSARY-ESTOPPEL IN PAIS-CONDITIONAL SALES CONTRACT-FORFEITURE-WAIVER OF-INSTRUCTED VERDICT-EVIDENCE.

1. In an action for the specific recovery of personal property when the defendant contests the case upon the claim of ownership and right of possession in himself, no previous demand by the plaintiff is necessary.

2. Where, as in this case, the general manager of a corporation encourages an act to be done, such corporation cannot afterwards exercise its legal right in opposition thereto, if his conduct or acts of encouragement induced the party to change his position so that he will be pecuniarily prejudiced by the assertion of such adverse legal right.

3. Where a conditional sales contract of personal property provides that upon breach by the vendee of any of the conditions thereof the vendor may, without notice, at its option, declare the contract terminated and retain all payments theretofore made by the vendee as liquidated damages, the vendor must exercise its option to declare the contract terminated, and upon it rests the burden to prove by affirmative acts establishing such forfeiture prior to the payment of the balance of the purchase price, or tender thereof, by the vendee, or his assignee who was induced to become such by the acts and conduct of the vendor. Otherwise it will be conclusively presumed that the vendor waived his right to forfeit the contract by reason of any such breach.

4. Held, that the court did not err in instructing the jury to return a verdict in favor of respondent.

5. Evidence examined and held sufficient to support the verdict and judgment in this case.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. R. N. Dunn, Judge.

Action to recover possession of an automobile or its value in lieu thereof. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

McFarland & McFarland, for Appellant.

"Where default is made by a vendee in some of the conditions expressed in a conditional sale of personal property, wherein it was provided that title should not pass to the vendee until all conditions were performed, the vendor is entitled to possession of the property and to choose his own paymaster, and he is not bound to accept any offer of payment from any other person other than the original purchaser." (Lippincott v. Rich, 19 Utah 140 56 P. 806.)

Ezra R Whitla, for Respondent.

In actions of this kind demand need only be made where it is necessary to terminate a right of the party to the property or to confer such a right upon the plaintiff. (13 Cyc. 1404; Leek v. Chesley, 98 Iowa 593, 67 N.W. 580; Klug v. Munce, 40 Colo. 276, 90 P. 603; Burchett v. Purdy, 2 Okla. 391, 37 P. 1053.)

Where the defendant pleads ownership and title, demand is eliminated from the case. (Thompson v. Thompson, 11 N.D. 208, 91 N.W. 44; Bunce v. McMahon, 6 Wyo. 24, 42 P. 23; Guthrie v. Olsen, 44 Minn. 404, 46 N.W. 853.)

Where one either by act or deed permits or induces another person to purchase property without notifying him of any claim of his in the property, he becomes estopped thereafter to set the same up. (Trustees v. Smith, 118 N.Y. 634, 23 N.E. 1002, 7 L. R. A. 755; Bryan v. Ramirez, 8 Cal. 461, 68 Am. Dec. 340; Lindsay v. Cooper, 94 Ala. 170, 33 Am. St. 105, 11 So. 325, 16 L. R. A. 813; Carpy v. Dowdell, 115 Cal. 677, 47 P. 695; Dickerson v. Colgrove, 100 U.S. 580, 25 L.Ed. 618; Markham v. O'Connor, 52 Ga. 183, 21 Am. Rep. 249; Thompson v. Sanborn, 11 N.H. 201, 35 Am. Dec. 490; 16 Cyc. 761, 763, 764, 770; Miller v. Ross, 107 Mich. 538, 65 N.W. 562; Brooks v. Martin, 43 Ala. 360, 94 Am. Dec. 686.)

Under the explicit provisions of sec. 8049, C. S., as well as numerous decisions thereon, the various tenders made were sufficient and the company could not escape the same by their actions in the case. (38 Cyc. 134-136; Holmes v. Holmes, 12 Barb. (N. Y.) 137; Witt v. Dersham, 146 Mich. 68, 109 N.W. 25.)

A demand or some affirmative action by the vendor terminating the contract is essential and necessary before the vendee's right in the property is terminated. (People's Furniture & C. Co. v. Crosby, 57 Neb. 282, 73 Am. St. 504, 77 N.W. 658; O'Rourke v. Hadcock, 114 N.Y. 541, 22 N.E. 33; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443, 38 N.W. 326; Wheeler & Wilson Mfg. Co. v. Teetzlaff, 53 Wis. 211, 10 N.W. 155; Nattin v. Riley, 54 Ark. 30, 14 S.W. 1100; Day v. Bassett, 102 Mass. 445.)

The vendee should be given the opportunity to pay when a forfeiture is declared. (35 Cyc. 673; Pease v. Teller Co., 22 Idaho 807, 123 P. 981.)

Reynolds took his title to this property charged with absolute knowledge of Leaf's interest therein. One buying property under such conditions is only in the position of the vendor. (California Cured Fruit Assn. v. Stelling, 141 Cal. 713, 75 P. 320; Phillips v. Reitz, 16 Kan. 396; Hayden v. Dwyer, 47 Minn. 246, 50 N.W. 200; Gaertner v. Western Elevator Co., 104 Minn. 467, 116 N.W. 945; 5 C. J. 962, par. 150; Fleming v. Law, 163 Cal. 227, 124 P. 1018; Northwestern & P. H. Bank v. Rauch, 8 Idaho 50, 66 P. 807.)

BUDGE, J. Rice, C. J., and McCarthy and Lee, JJ., concur. Dunn, J., did not sit at the hearing or participate in this opinion.

OPINION

BUDGE, J.

This action was brought by respondent to recover possession of an automobile, or the value thereof in case possession could not be obtained.

It appears from the record that on May 9, 1918, the Eldridge Buick Company, a Washington Corporation, entered into a conditional sales contract with one E. R. Kelly at Spokane, for the purchase by the latter of a certain Buick automobile, at a purchase price of $ 925, of which $ 500 was paid on said date, contemporaneously with the delivery of the car to Kelly, and the balance of $ 425 was to be paid in instalments, the first for $ 53.16 on June 9, 1918, and the remaining instalments of $ 53.12 on the 9th of each succeeding month until the entire amount was paid. The contract provided, among other things, that:

"Title to said property is expressly reserved in the Vendor, and the payment of the full purchase price is a condition precedent to the sale and transfer of title to said property. . . ."

"At any time that, in the judgment of the Vendor, the security for the balance of the purchase price remaining unpaid shall become insufficient, . . . the vendor may retake the property and retain the same in its possession, . . ."

"The Vendee shall not permit the property to pass from the Vendee's exclusive possession and control, nor shall Vendee assign or sell any interest in the property or in this contract, or permit the property to become subject to any lien or encumbrance without the written consent of the Vendor; and shall not permit the property to be seized or levied upon, upon any valid claim against the property or Vendee. . . ."

"Time and the performance of each and every covenant and condition of this agreement by Vendee are of the essence hereof, and upon the breach of any of said conditions, or in case Vendee shall abuse, misuse, secrete, remove or attempt to secrete or remove said personal property, the Vendor or its assigns may, without notice, at its option,

"(1) Declare this contract terminated, and retake possession of said property . . . and retain all payments theretofore made . . . as liquidated damages . . .; or (2) Declare the whole unpaid balance of said contract, together with interest thereon, immediately due and collectible."

The evidence is uncontroverted to the effect that Kelly drove the car to St. Maries, Benewah county, where it was seized by the sheriff while being used in the transportation of intoxicating liquor; that while the car was being so held, J G. Fralick, assistant cashier of the Lumbermen's State Bank of St. Maries, called on E. C. Finlay, general manager of the Eldridge Buick Company, at Spokane, on behalf of respondent, who desired to purchase the car; that a conversation was had between Fralick and Finlay, with respect to which the latter, who was called as a witness for appellant, testified as follows: "A. I told him I wanted the money out of this deal, in fact I said I did not want any trouble. I made a statement that I wanted my money out of it. I didn't care whether it came from Kelly or who it was. Q. You did tell him, Mr. Finlay, that he would have to settle with Kelly, as you had had to take over such a deal before? A. I did tell him that Kelly had an equity in the car. We did not want any trouble from Kelly if we did sell it. Q. The substance of it was, you told him that if he would settle with Kelly he could have your equity in the car for the amount that was still due? A. I referred to that. It would be necessary that we would have to be released as far as we thought possible from any obligation from whoever we sold it to"; that the substance of this conversation was reported to respondent; that subsequently, on June 8, 1918, respondent paid Kelly $ 100 and received from him a bill of sale of the car; that June 9, 1918, fell on Sunday, and that on the following day Fralick advised the company by telephone that respondent had purchased Kelly's interest in the car, and asked if their Spokane correspondent bank might make the payment then due under the contract, whereupon he was informed that the matter had been turned over to John A. Gordon, the company's attorney; that Fralick then requested Mr. Rouse, cashier of the Fidelity National Bank of Spokane, by telephone, to tender the payment then due; that Mr. Rouse made a verbal tender, which he confirmed by a tender in...