McCormick Harvesting MacH. Co. v. Lewis

• Citation: 52 Kan. 358,35 P. 12
• Parties: THE MCCORMICK HARVESTING MACHINE CO. v. NATHAN LEWIS
• Decision Date: 09 December 1893
• Court: United States State Supreme Court of Kansas

35 P. 12

52 Kan. 358

THE MCCORMICK HARVESTING MACHINE CO. v. NATHAN LEWIS

Supreme Court of Kansas

December 9, 1893

Error from Russell District Court.

THE opinion states the case.

Judgment reversed and cause remanded.

H. L Pestana, for plaintiff in error:

Plaintiff in error contends that the legal effect of giving the chattel mortgage on the machine purchased and other personal property to secure the payment of the note was to change the title in the machine from the plaintiff in error to Lewis. The mortgage was accepted by the company and duly recorded. See McRea v. Merrifield, 48 Ark. 160.

H. G Laing, for defendant in error:

In the case of McRea v. Merrifield, 48 Ark. 160, cited by plaintiff the property for which the possession note was given was replevied. The court held that it was only an agreement to sell and not a sale, and that "when the condition is broken, the seller may elect to reclaim his property, or treat the transaction as a sale and bring an action for the agreed price," citing Bailey v. Harvey, 135 Mass. 172. In the case at bar, plaintiff elected to take the property, and, without even selling it or giving any credit for it, brings his action on such note.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action upon a promissory note for $ 310.11, given by Nathan Lewis to the McCormick Harvesting Machine Company for a binder. The note contained a stipulation that the title to the binder would not pass to Lewis until the note and interest were paid in full. The machine had been purchased several years before, and the note in question was in renewal of one previously given. Two days after the note was executed, Lewis, at the request of the company, executed to it a chattel mortgage upon the binder and other property to secure the payment of the note. The note was not paid at maturity, and a short time afterward possession of the mortgaged property was taken by the company under the mortgage, and some, if not all, of it was sold at public sale. Lewis defends against a recovery upon the note insisting that by a condition which it contained he never obtained the ownership of the property or anything else for the note, and hence had nothing to mortgage or convey. The stipulation in the note reserving title in the company evinced an intention of both parties to treat the sale as conditional rather than absolute. If nothing more appeared, it...