Miller-Cahoon Co. v. Lawrence

• Decision Date: 01 November 1918
• Citation: 31 Idaho 704,176 P. 774
• Parties: MILLER-CAHOON COMPANY, a Corporation, Respondent, v. A. T. LAWRENCE and GEORGE H. LAWRENCE, Appellants
• Court: Idaho Supreme Court

176 P. 774

31 Idaho 704

MILLER-CAHOON COMPANY, a Corporation, Respondent, v. A. T. LAWRENCE and GEORGE H. LAWRENCE, Appellants

Supreme Court of Idaho

November 1, 1918

APPEAL AND ERROR-ATTACHMENT-CONDITIONAL SALE CONTRACTS.

1. Where the transcript does not contain an order disposing of a motion to vacate and dissolve a writ of attachment, nor a notice of appeal from the action of the court thereon, such action, if any was taken, is not presented to the supreme court for review.

2. Where possession of goods is delivered by a vendor to a purchaser under an agreement that there is no conveyance of title, but that the ownership of the goods is to remain in the vendor until payment of the purchase price, the transaction is a conditional sale.

3. The provision of the conditional sale contract, here under consideration, whereby the purchasers of property obligated themselves to pay a sum of money, to be ascertained as therein stated, as damages and for the use of the property in case it was repossessed by respondent, because of default in payment of the purchase price, is valid and binding.

[As to when delivery of personalty does not pass title, see note in 120 Am.St. 868]

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. F. J. Cowen, Presiding Judge.

Action upon conditional sale contract for damage to and use of property. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

William A. Lee and Holden & Holden, for Appellants.

"Where a conditional sale contract . . . . provides that the seller may retake the property, the seller has two remedies: First the collection of the remainder of the purchase price second, the retaking of the property, but the seller cannot resort to both remedies." (Pease v. Teller Corporation, 22 Idaho 807, 128 P. 981; Keystone Mfg Co. v. Cassellius, 74 Minn. 115, 76 N.W. 1028; Nashville Lumber Co. v. Robinson, 91 Ark. 319, 121 S.W. 350; Jones v. Reynolds, 45 Wash. 371, 88 P. 577; Williston on Sales, p. 964; Stewart & Holmes Drug Co. v. Reed, 74 Wash. 401, 133 P. 577; Pacific Carbonator Co. v. Haydes & Son, 26 Cal.App. 607, 147 P. 988; Turk v. Carnahan, 25 Ind.App. 125, 81 Am. St. 85, 57 N.E. 729; Hervey v. Rhode Island Locomotive Works, 93 U.S. 664, 23 L.Ed. 1003; Parke & Lacy Co. v. White River Lbr. Co. , 101 Cal. 37, 35 P. 442; Herring-Marvin Co. v. Smith, 43 Ore. 315, 72 P. 704, 73 P. 340; 6 Am. & Eng. Ency. of Law, 2d ed., 480; Sanders v. Newton, 140 Ala. 335, 1 Ann. Cas. 267, 37 So. 340.)

The vendor cannot both pursue the property in rem, and at the same time pursue the vendee with an action in debt for the purchase price. (Mark Means Transfer Co. v. Mackinzie, 9 Idaho 165, 174, 73 P. 135; Bailey v. Hervey, 135 Mass. 172, 174; Kester v. Schuldt, 11 Idaho 663, 85 P. 974.)

An attachment could not be allowed in a suit upon a title note, because the vendor held the highest form of security, that is, the title to the property itself. (Barton v. Groseclose, 11 Idaho 227, 81 P. 623.)

D. E. Rathbun, for Respondent.

"Equity will not reform instruments which express the intention of the parties at the time they are made." (3 Elliott on Contracts, sec. 2365.)

"A court of equity will not reform an instrument by inserting in it a clause which the parties deliberately agreed to leave out." (3 Elliott on Contracts, 2374; Harkness v. Russell, 118 U.S. 663, 7 S.Ct. 51, 30 L.Ed. 285; Mark Means Transfer Co. v. Mackinzie, 9 Idaho 165, 173, 73 P. 135; Barton v. Groseclose, 11 Idaho 227, 81 P. 623.)

"Where property is sold, the seller taking notes for the price, in each of which it is stipulated that the title to the property should remain in him until full payment of the notes, and that in case of default the payments previously made should be considered as payments for the use of the property, and after default in payment of the last note the seller retakes the property and sells it, after notice to the buyer, for a sum less than the amount due him on the last note, such sale will not preclude him from recovering the balance due to him on said note, such note stipulating that it was to be paid absolutely and at all events, and without defense." (Dederick v. Wolfe, 68 Miss. 500, 24 Am. St. 283, 9 So. 350; Christie v. Scott, 77 Kan. 257, 94 P. 214; Matteson v. Equitable Min. & Mill. Co., 143 Cal. 436, 77 P. 144.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

--Appellants, having purchased from respondent a disc plow, on April 2, 1912, in part payment therefor, executed and delivered their promissory note, due on or before October 1, 1912, incorporated and expressed in a conditional sale contract, which contract contained, among others, the following provisions:

"The conditions of this transaction are that the title to said property does not pass from said company until this note and interest shall have been paid in full, and the said company or its agent has full power to declare this note due and take possession of said property when it deems itself insecure, even before the maturity of this note. . . .

"In case this property shall be taken back, Miller-Cahoon Company may sell the same at public or private sale, without notice, and apply the proceeds on this note; or they may, without sale, endorse the reasonable value of the property on this note, and I, we, or either of us agree to pay any balance due thereon after such indorsement, as damages and for the use of said property."

Appellants defaulted in the payment of a portion of the indebtedness and respondent repossessed the plow, sold it at public auction, applied the proceeds of the sale upon the note and commenced this action to recover the sum due according to the terms of the contract. The trial resulted in a verdict and judgment in favor of respondent, from which this appeal is prosecuted.

Upon filing its complaint respondent procured to be issued a writ of attachment which was levied upon property belonging to appellants. They moved to vacate and dissolve the writ, upon the ground that the affidavit to procure its issuance was insufficient, and the action of the court in not sustaining their motion is assigned as error. The transcript does not contain an order disposing of the motion, nor a notice of appeal from the action of the court in that particular. Rev. Codes, sec. 4824, provides: "Upon an appeal from a judgment, the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the...