Mevorah v. Goodman

• Decision Date: 11 June 1954
• Docket Number: No. 7430,7430
• Citation: 65 N.W.2d 278
• Parties: MEVORAH et al. v. GOODMAN et al.
• Court: North Dakota Supreme Court

Page 278

65 N.W.2d 278

MEVORAH et al. v. GOODMAN et al.

No. 7430.

Supreme Court of North Dakota.

June 11, 1954.

Rehearing Denied July 6, 1954.

Syllabus by the Court.

1. Where trial de novo for a review of the entire case is not demanded upon appeal from the judgment in an action tried to the court without a jury, review by the supreme court as to questions of fact is limited to those specified on which a review is desired. All questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Sec. 28-2732, NDRC 1943.

2. In the absence of an actionable default by the purchaser in the performance of a conditional sale contract, the purchaser is entitled to the possession, use and enjoyment of the property contracted for.

3. In an action by the purchaser for preventive relief by injunction, to restrain a seller from doing that which ought not to be done, viz.: a wrongful interference with the possession, use and enjoyment of property contracted for, it is not material whether the legal title to the goods is retained by the seller.

4. Where a business, including a stock of goods, supplies, the trade-name, and the use of the mail addressed to such trade-name, is sold by written contract containing provisions for conditional sale of the stock of goods, and the sellers pledge their cooperation to the buyers in carrying on the business, and the sellers usurp the trade-name and wrongfully interfere with the conduct of the business, such conduct constitutes a breach of the contract the performance of which could be specifically enforced. Secs. 32-0412 and 32-0413, NDRC 1943.

5. A final injunction, when authorized, may be granted to restrain the breach of a contract, unless it is one the performance of which could not be specifically enforced. Sec. 32-0505, NDRC 1943.

6. A judgment for conversion does not in itself operate to extinguish the owner's title to the property converted, whether such title is legal or equitable. The bar arises only upon payment of the judgment.

7. Where the purchaser of property under a conditional sales contract seeks to follow and reclaim the property or its proceeds, in whole or in part, from those who have wrongfully repossessed it, he does not thereby waive the wrongful taking and may still sue the wrongdoer for damages, applying in reduction thereof the property or proceeds he may have received.

8. A seller of personal property under a conditional sale contract holds legal title to the goods only as security for the performance of the contract by the buyer and where the seller wrongfully repossesses the property and wrongfully detains it, he is an implied trustee of the property for the benefit of the purchaser from whom the property was taken. Sec. 59-0106, NDRC 1943.

9. A final injunction may be granted to prevent the breach of an obligation existing in favor of the applicant when obligation arises from a trust. Sec. 32-0504, NDRC 1943.

10. A party entitled to invoke the equitable powers of the district court pursuant to Sec. 28-2908, NDRC 1943 may also seek the same and other equitable relief in a separate suit and obtain an injunction pendente lite to preserve the status quo pending the determination to another action on the merits.

11. The granting of a temporary restraining order and a temporary or final injunction, when authorized, is a matter lying wholly within the sound discretion of the trial court. The district judge may modify, continue or dissolve an injunction or refuse to do so as well as grant or refuse to grant the injunction in the first instance. His action will not be disturbed unless it appears that in so doing there was an abuse of discretion.

12. The appellant has the burden of showing error and establishing affirmatively that the trial court has abused its discretion.

13. Where trial de novo for a review of the entire case is not demanded upon appeal from the judgment in an action tried to the court without a jury, the supreme court may review errors appearing on the face of the judgment roll which are assigned and argued by the appellant in his brief. Secs. 28-2012, 28-2707, 28-2728 and 28-2732, NDRC 1943.

J. F. X. Conmy, Fargo, for plaintiffs-respondents.

Lanier, Lanier & Knox, Aaron Aronson, Fargo, for defendants-appellants.

BURDICK, District Judge.

On June 23, 1950, the plaintiffs, as purchasers, and the defendants, as sellers, entered into a contract whereby the plaintiffs purchased from the defendants a business known and operated as Irving's Tractor Lug Company. This business consisted of buying and selling, at wholesale and retail, new, reconditional, and used parts of tractors and other agricultural implements. The defendants had maintained places of business at Fargo, North Dakota and Portal, North Dakota and Wichita, Kansas, the principal place of business being in Fargo. The consideration for the sale was $100,000, of which $5,000 was paid in cash. Title to the stock of goods, consisting of the inventory of tractor and agricultural implement parts, was reserved to the defendants until payment of the balance of the purchase consideration which was to be paid within three years from June 21, 1950, the date of the promissory note given by the plaintiffs as evidence of balance due on the purchase price.

The contract contained the following pertinent provisions:

A. Sale of Business.

1. The sellers agree to sell and the purchasers agree to buy the new and reconditioned tractor and agricultural implement parts as listed in the inventory hereto attached marked Exhibit 'A' and made a part hereof. The said stock of parts listed in the inventory located at Fargo, North Dakota, Portal, North Dakota and Wichita, Kansas. Sale of said items listed on the inventory are pursuant and subject to the conditional sales contract stated hereinafter in this agreement.

2. The sellers hereby sell, transfer and set over to the buyers and catalogs, office supplies and stationery and duplicate parts books of the Irving's Tractor Lug Company located on or about the premises at Fargo, North Dakota, Portal, North Dakota and Wichita, Kansas.

3. The sellers further transfer, set over and sell to the buyers the good will and the name Irving's Tractor Lug Company. From and after the date of this agreement the sellers shall no longer have any right to use the name Irving's Tractor Lug Company.

D. Conditional Sales Agreement.

1. Title to the stock in trade; that is, the new and reconditioned tractor and agricultural

implement parts as listed in the attached in-entory, Exhibit A, shall be retained in the sellers until the balance of the purchase price represented by the within note (paragraph C herein) has been paid, as hereinafter set forth, provided however, that the purchaser shall have the right to sell the parts listed in the inventory in their regular and ordinary course of business, including foreign experts upon the conditions hereinafter set forth.

7. It is agreed that time is the essence of this contract. Upon default or breach by the purchasers of any of the terms of this agreement, or upon seizure of the property under execution or other legal process, or upon the insolvency or bankruptcy of the purchasers, or either of them, or the assignment by them for the benefit of creditors, or encumbrance, removal or other disposal of said property, or any part thereof, or sale of said property, or any part thereof, except in the regular and ordinary course of business, or; if the purchasers suffer or permit any lien or claim to attach to said property or if the sellers shall, at any time, deem themselves reasonably insecure, the full amount of the indebtedness then remaining unpaid shall at once become due and payable, at the option of the sellers. The sellers, without notice or demand and without legal process, may enter upon the premises where any of said property may be located and may take immediate possession of same and remove the same, as they so desire, using all necessary force to do so (The purchasers hereby waiving all actions for trespass or damage thereby) and retain the same, together with any and all payments previously made by the purchasers by way of liquidated damages and Sellers may, at their option, make any disposition of said property that they deem fit and may, with or without notice, sell said property at public or private sale, at which sale the sellers may become a purchaser.

E. General Provisions of Sale.

6. The office and warehouse equipment of the Irving's Tractor Lug Company is neither sold nor rented to the buyers. The buyers, however, have the privilege of using the warehouse equipment free of charge for three years or until the note is paid in full. The buyers have the further privilege of using the office equipment needed in their business, such as typewriters, adding machines, desks, files and dictaphone for the same period of time. Any index cards or mailing lists on the premises may be used by the buyers but they are not sold or rented. Buyers are permitted to make copies of the mailing lists or index cards. The buyers agree to return all office equipment, warehouse equipment, etc. covered by this paragraph to the sellers in as good condition as received at the end of three years or sooner if the note is earlier paid.

8. Restrictions in the buyers in the operation of their business is for the sellers security only, and upon payment of the indebtedness represented by the within note all restrictions shall cease, and the sellers shall have no right to interfere with the buyers in the conduct of their business.

F. Leave Provisions.

1. The sellers agree and do by these presents lease to the buyers the premises occupied by Irving's Tractor Lug Company at Fargo, North Dakota and Portal, North Dakota, for the terms and rentals set forth hereinafter. The premises leased are described as follows:

(a) Portal, North Dakota:

(b) Fargo, North Dakota

2. The leased premised...