Lippincott v. Rich

• Decision Date: 06 June 1900
• Citation: 61 P. 526,22 Utah 196
• Parties: CHARLES LIPPINCOTT & CO., APPELLANT, v. E. E. RICH AND THE WASATCH DRUG COMPANY, RESPONDENTS
• Court: Utah Supreme Court

61 P. 526

22 Utah 196

CHARLES LIPPINCOTT & CO., APPELLANT, v. E. E. RICH AND THE WASATCH DRUG COMPANY, RESPONDENTS

Supreme Court of Utah

June 6, 1900

Appeal from the Third District Court, Salt Lake County. Hon. A. N Cherry, Judge.

Action in replevin to recover certain personal property and damages for the unlawful detention of the same. From a judgment of non-suit entered on motion at the close of plaintiff's testimony, plaintiff appealed.

Reversed and remanded.

C. S Patterson, Esq., for appellant.

Unless the contract so provided the vendor who retakes the property upon default by the vendee is not generally bound to return unpaid notes given by the vendee to secure the purchase money. Am. & Eng. Encl. Law, Vol. 6, page 481; Kirby v Tompkins, 48 Ark. 273; Bauendahl v. Horr, 7 Blatchf, 548; Tuft's v. D'Arcambal, 85 Mich. 185, (25 Am. St. Rep., 79).

The evidence showed that before the action was commenced the notes were tendered back to John B. Forbes, whom the evidence showed to be in possession of the property in controversy, under a deed of assignment from F. O. Horn and Jennie Horn, doing business as the Wasatch Drug Company. Under these circumstances a tender to Forbes was a tender to the Horns.

An assignment, though void as against creditors, is always valid as between the immediate parties. Burrill on Assignments, (6th Ed.) Sec. 323, and a large number of cases cited.

The effect of a deed of assignment is to place the assignee in the situation of representative or agent of the assignor, coupled with his relation as trustee for the creditors. Burrill on Assignment, Sec. 271; 3 Am., & Eng. Enc. Law, page 98.

Under the evidence the defendants were trespassers and had no legal right to require a tender of the notes, even had such tender been necessary.

At any rate, under the pleadings, no demand was necessary on defendants, as they set up title in themselves. Cobby on Replevin, Sec. 450, and cases cited.

Messrs. Bennett, Harkness, Howat, Sutherland & Van Cott, for respondents.

After the final sale to the Wasatch Drug Company, a corporation, the plaintiff had at least three elections:

1. To deal with the last vendee, and allow the latter to complete the executory contract in the same manner that the first vendee might have done.

2. To take back the fountain under the terms of the contract and hold the same until the last vendee complied with the terms of the contract, and then re-deliver the fountain.

3. Rescind or disaffirm absolutely the contract of the sale, and end the rights of all parties thereunder.

The vendor disaffirmed the conditional sale and demanded immediate possession of the property and tendered back the unpaid notes to the assignee. The unpaid notes were tendered not to the maker, but to the assignee. As plaintiff chose to rescind, he must abide by the principles of rescision; he must put the other party in statu quo; he must return as far as possible, what he has received.

The vendee cannot receive and retain money on a contract, retain under-due notes, and take all the property back besides; such action shocks the feelings and offends the dullest sense of justice. Crabtree v. Segrist, 3 New Mexico 495, 131 U.S. 291-2; 21 Ency. Law 84-9 and notes.

MINER, J. BARTCH, C. J., and BASKIN, J. concur.

OPINION

MINER, J.

This action was before this court on a former appeal, and the decision thereon is reported in 19 Utah 140, 56 P. 806. In 1890, F. O. and Jennie Horn were doing business under the firm name of the Wasatch Drug Company. On that day they purchased from the plaintiff Charles Lippincott & Co., a soda fountain, the property in question here, by a contract of conditional sale, giving a large number of notes in connection with the contract, all providing that the title to the soda fountain should not pass to the Wasatch Drug Company until all of said notes were paid, and that until then the title thereto should remain in Lippincott & Co., who had the right in case of nonpayment at maturity of either of said notes, without process of law, to enter and take immediate possession of said property wherever it may be and remove the same. It was further provided in said notes that in case they, or either of them, were placed in the hands of an attorney for collection after maturity, by suit or otherwise, that the makers should pay a reasonable attorney's fee, and costs of collection. The notes falling due January 1st, February 1st, and March 1st, 1897, were unpaid at the time this action was commenced.

Prior to March 20, 1897, Horn and wife, trading as the Wasatch Drug Company, made an assignment of all their property, including the soda fountain, to John B. Forbes, who went into possession thereof. Thereafter on the 20th day of March, 1897, plaintiff served on Forbes a written notice disaffirming the sale, demanded back the possession of the property on account of the non-payment of the notes, and tendered to Forbes the unpaid notes. Forbes refused to comply, but tendered the attorney for the plaintiff, who held the notes and made the demand, $ 30.00, that being the face value of the notes due, but did not include $ 1.60, interest due on said notes to that date. This tender was refused because the amount tendered was not sufficient. Immediately thereafter Forbes assigned and sold the property to the Wasatch Drug Company, who claimed the property at the time this action was brought. On April 7, 1897, this action was brought in replevin to recover the property and damages for the unlawful detention of the same.

At the conclusion of plaintiff's testimony, the defendants moved for a non-suit on the ground that the unpaid notes had not been tendered back to the makers F. O. and Jennie Horn. The non-suit was granted, and the action was dismissed. From this judgment of dismissal the plaintiff appeals.

One of the questions involved in this appeal is whether the plaintiff was bound to tender back the unpaid notes to Horn and wife before bringing this action in replevin; and another question is whether the notes were negotiable.

The notes in question were past due, and in the hands of the payee when the action was brought. One condition of the notes was that a reasonable attorney's fee should be paid in case the notes should be placed in the hands of an attorney for collection after maturity. The amount of the attorney's fee was not definitely fixed and was uncertain in amount, and did not bind the makers to pay a definite or certain sum, and...