Lindley & Co. v. Piggly Wiggly Nevada Co.
| Decision Date | 05 January 1935 |
| Docket Number | 3016. |
| Citation | 39 P.2d 903,55 Nev. 458 |
| Parties | LINDLEY & CO. v. PIGGLY WIGGLY NEVADA CO. et al. (NEVADA MACHINERY & ELECTRIC CO., Intervener). |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Thomas F. Morgan, Judge.
Suit by Lindley & Co., on behalf of itself and all other creditors of the Piggly Wiggly Nevada Company, similarly situated, against the Piggly Wiggley Nevada Company and others, wherein the Nevada Machinery & Electric Company filed a petition in intervention. From an adverse judgmetn and order denying a new trial, intervener appeals.
Reversed with directions.
See also, 54 Nev. 454, 22 P.2d 355; 30 P.2d 223.
H.R Cooke and Ayres, Gardiner & Pike, all of Reno, for appellant.
Talmage L. Smith, of Reno, for respondents.
G Gunzendorfer, of Reno, for plaintiff trustee.
The Piggly Wiggly Nevada Company, a corporation, owned and operated a grocery store in Reno, Nev., and a grocery store in Ely, Nev. The Nevada Machinery & Electric Company, a corporation, installed in each of said stores an electric refrigerating plant on conditional sale contracts. On May 29, 1931, Lindley & Co., a corporation, filed a complaint in the court below against the Piggly Wiggly Nevada Company, setting up alleged grounds for a receiver and asking for the appointment of a trustee. On the same day, the defendant company having appeared and consented to the appointment of a trustee, the court made an order appointing Charles Hansen, as trustee, with usual powers granted receivers in similar cases. On February 29, 1932, the Nevada Machinery & Electric Company made written demand upon the trustee either for the payment of the delinquent price for each of said electric refrigerating plants or that the property be returned to the seller. Failing in this, the seller, on March 12, 1932, filed its petition in the receivership cause, setting up, among other things, that under and by virtue of a written conditional sale contract dated June 11, 1929, the petitioner sold and installed in the Reno store of the Piggly Wiggly Nevada Company an electric refrigerating plant for the agreed price of $1,650, payable $400 upon the signing of said contract and the balance payable thirty days after date of the installation, which was completed on or about the 1st day of August, 1929; that said sum of $400 was paid on or about the signing of said contract, but that no further payment was made, except as follows: $700 November 27, 1929; $17.60 January 31, 1931; and $148.42 February 28, 1931, leaving a balance due and owing upon the Reno contract of $503.46, principal and interest. The petition alleged that on November 25, 1929, the petitioner entered into a further and separate written conditional sale contract to install in the Ely store a complete electric refrigerating plant for $2,461.13, payable in cash upon the arrival of material, etc., at Reno or Ely. The petition shows the various items and dates of payments on the Ely plant beginning with December 7, 1930, and ending on August 29, 1931, and, after allowing and crediting the payments, there was owing and unpaid the sum of $1,941.27. The petitioner alleged that in each of said contracts title was reserved in the seller until the full payment of the purchase price; that thevendee was in default, and petitioner is the owner of, and entitled to possession of, the property. The petitioner prayed judgment against the trustee for recovery of possession of the property or for th esum of $4000, the value of the property, and, in case delivery could not be had, the same to be ordered paid as a preferred claim. The trustee, for answer to the petition, disclaimed having any knowledge of or information of the facts alleged in the petition, and prayed that the court find and adjudged in accordance with the facts of the case.
After a full hearing, the court rendered its decision, supplemented by findings of fact and conclusions of law, upon which it was adjudged and decreed that the petitioner was not entitled to judgment for the recovery of possession of the two refridgerating plants, nor entitled to recover the value in cash in case delivery could not be had; neither was petitioner entitled to be paid any amount forthwith as a preferred claimant, but was entitled to file a claim as a general credit, and to be paid pro rata with all creditors of the Piggly Wiggly Nevada Company, a corporation. Petitioner appeals from the judgment and from an order denying a new trial.
The court's findings establish each and all of the allegations contained in the petitioner, except the averment "default has been made in both of the above described contracts and petitioner is the owner and entitled to the possession of all of the above described property." The findings in this regard are, in substance, that, by the acceptance of the payments in the amounts indicated after default, the petitioner waived and lost any right that it might theretofore have to reclaim the property embraced in the Reno contract; the title thereto by the course of dealing between the parties having absolutely vested in the Piggly Wiggly Nevada Company. As to the Ely contract, the finding was, in effect that the balance due was not conditioned upon any right of petitioner to retain ownership or to retain the property; that, if there was any condition attached to the sale or installation of said refrigerating plant, the same was waived and abandoned by petitioner, and the petitioner had no right to reclaim the property. It was further found that the petitioner took no steps to repossess the property until on or about February 29, 1932, when petitioner caused to be served upon the trustee the written demand hereinabove mentioned.
The question most discussed on appeal is the court's findings relative to the subject of waiver. It is held that no general rule in re to a...
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