McDaniel v. Chiaramonte

• Decision Date: 19 March 1912
• Citation: 122 P. 33,61 Or. 403
• Parties: McDANIEL v. CHIARAMONTE.
• Court: Oregon Supreme Court

122 P. 33

61 Or. 403

McDANIEL v. CHIARAMONTE.

Supreme Court of Oregon

March 19, 1912

Appeal from Circuit Court, Multnomah County; C.U. Gantenbein, Judge.

Suit by N.M. McDaniel against Rosi Chiaramonte. From a decree for plaintiff, defendant appeals. Affirmed.

On October 8, 1910, plaintiff entered into an agreement with defendant to sell her a certain automobile for the price of $3,005.20, of which defendant paid $700 in cash, $100 in ten days, and gave three promissory notes of that date for the balance of the price, namely, one for $300, payable in monthly installments of $100 each, beginning November 8 1910; one for $300, payable in two installments, namely, $150 on February 8, 1911, and $150 on March 8, 1911; and one for $1,605.20, payable in eight monthly installments of $200.65 each, beginning April 8, 1911; each note providing for attorney's fees in case of suit or action thereon. At the time the agreement was made, and as a part of that transaction, plaintiff and defendant executed an agreement as follows:

"Memorandum of Agreement, made this 8th day of October, 1910, between N.M. McDaniel, party of the first part, and Giuseppe Chiaramonte and Rosi Chiaramonte, his wife, parties of the second part, witnesseth: That the said party of the first part has agreed to sell and deliver to the parties of the second part one seven-passenger Rambler 1910 automobile model 55, complete, with one extra wheel, tube and tire equipped with top, glass wind shield and speedometer, at the price of three thousand five and 20/100 ($3,005.20) dollars which said price the parties of the second part promise and agree to pay as follows: Seven hundred ($700.00) dollars cash down, receipt whereof is hereby acknowledged; and the balance in installments in accordance with the terms of promissory notes of even date herewith, as follows: One hundred ($100) dollars within ten days, one hundred ($100.00) dollars on the 8th day of November, 1910, and a like payment on the 8th day of December, 1910, and on the 8th day of January, 1911; and one hundred and fifty ($150) dollars on the 8th day of February, and on the 8th day of March, 1911, and two hundred ($200.00) dollars on the 8th day of each month thereafter until the whole amount is paid; deferred payments to bear interest at the rate of eight per cent. per annum to be paid monthly at the time of payment of each installment. And the second parties further agree to pay for and carry insurance on said automobile in the amount of twenty-five hundred ($2,500) dollars for the benefit of the first party as his interest may appear until the said automobile is fully paid for. And it is understood and agreed that the party of the first part shall retain the title to said automobile as security for the amount due him on said purchase price until the same shall be paid in full; and that failure of the second parties to pay any of said installments of principal or interest when the same shall fall due shall entitle the party of the first part, at his election, to declare the whole of said purchase price and all said promissory notes given therefor due and payable and proceed immediately for the collection thereof. Witness our hands the day and year first above written. [ Signed] N.M. McDaniel. Rosi Chiaramonte.

"Whereas the automobile mentioned in the attached contract is being purchased by the parties of the second part for the benefit of their son, Peter Chiaramonte, who is not yet of the age of majority; and whereas, Giuseppe Chiaramonte is at this time absent from the city of Portland and cannot sign said contract until his return: It is understood and agreed that the said automobile shall immediately be delivered into the possession of said Peter Chiaramonte, and that said Giuseppe Chiaramonte shall sign said contract and the promissory notes therein referred to immediately upon his return to the city of Portland. Otherwise the party of the first part shall be entitled to declare the whole of said purchase price immediately due and reclaim the possession of said machine but, if the said notes and contract are joined in by said Giuseppe Chiaramonte immediately upon his return to the city of Portland, then the said Peter Chiaramonte shall be entitled to the possession and use of said automobile until there shall be a default in the payments therefor; that upon such default the party of the first part shall be entitled to the immediate repossession thereof. Witness our hands the day and year first above written. [ Signed] N.M. McDaniel. Rosi Chiaramonte."

Upon default in payment of a part of the first promissory note, plaintiff took possession of the auto. Thereupon defendant brought an action against plaintiff to recover the sum of $950, the amount paid on the purchase price, and thereafter plaintiff brought this suit as a cross-bill to enjoin the law action and foreclose defendant's equity in the automobile. To the cross-bill, defendant filed a demurrer, which was overruled by the court, and a decree was rendered in plaintiff's favor, as prayed. Defendant appeals.

M.B. Meacham (Albert B. Ferrera, on the brief), for appellant.

A.H. Tanner and John Van Zante (Johnson & Van Zante, on the brief), for respondent.

EAKIN, C.J. (after stating the facts as above).

The first question relates to the character of the transaction as disclosed by the complaint, whether it is a conditional sale or a chattel mortgage. "The term 'conditional sale' is, however, commonly applied to a class of transactions where, by the terms of the contract, the possession of the goods is delivered to the buyer; but the property in them is to remain in the seller until the payment of the price." 35 Cyc. 652. The transaction is none the less a conditional sale, because the defendant is obligated absolutely to pay the price, as that is a condition alike of absolute and conditional sales. Freed Furniture, etc., Co. v. Sorensen, 28 Utah, 419, 79 P. 564, 107 Am.St.Rep. 731, 3 Ann.Cas. 637, and note; 35 Cyc. 654.

Here defendant agreed to buy and unconditionally to pay the purchase price of the machine. Plaintiff retained title to the machine as security for the payment of the purchase price, and on default of payment he was authorized to take possession, and at his election ...