Nashville Auto Sales Co. v. Wright

• Decision Date: 13 March 1943
• Citation: 171 S.W.2d 834
• Parties: NASHVILLE AUTO SALES CO. v. WRIGHT.
• Court: Tennessee Supreme Court

171 S.W.2d 834

NASHVILLE AUTO SALES CO. v. WRIGHT.

Court of Appeals of Tennessee, Middle Section.

March 13, 1943.

Certiorari Denied by Supreme Court May 13, 1943.

Appeal in Error from Circuit Court, Davidson County; Richard P. Dews, Judge.

Action by Robert Wright against the Nashville Auto Sales Company to recover a sum paid by plaintiff to defendant under a conditional sales contract. Judgment for plaintiff, and defendant appeals in error.

Affirmed.

Elkin Garfinkle and Dan Garfinkle, both of Nashville, for plaintiff in error.

Z. Alexander Looby, of Nashville, for defendant in error.

HICKERSON, Judge.

Robert Wright bought an automobile truck from Nashville Auto Sales Company under a conditional sales contract and paid $206.50 on the purchase price. Then he defaulted and the seller recovered possession of the truck by a replevin warrant issued by the Court of General Sessions of Davidson County, Tennessee, on January 23, 1942. The replevin case was set for trial on January 26, 1942. Neither party appeared and the Court of General Sessions put the replevin warrant in a file which was used for cases where neither party appeared. It was the practice in the Court of General Sessions for either party to the suit to make application to have the case, which was continued in this manner, reset for trial. No further steps were taken in the replevin suit. The purchaser never made any defense to the replevin suit. The seller did not advertise and sell the truck.

Because of the failure of the seller to advertise and sell the truck which had been replevied, the purchaser brought the present suit on March 5, 1942, to recover the amount which he had paid under the conditional sales contract. The seller defended the suit on the ground that the replevin suit was still pending and that it did not have to advertise and sell the truck under the conditional sales act until final judgment was rendered in the replevin suit.

The trial court awarded the purchaser a recovery, and the seller appealed in error to this Court.

The applicable Code Sections are these:

Section 7287. "Failure to pay purchase money; advertisement and sale of chattel; waiver of sale. — When any personal property is so sold upon condition that the title remain in the seller, it shall be the duty of said seller, having regained possession of said property because of the consideration remaining unpaid at maturity, within ten days after regaining said possession, to advertise said property for sale for cash, * * *."

Section 7290. "Unsatisfied claim a legal debt. — Should said property, at the sale provided by this article, fail to realize a sufficient sum to satisfy the claim of the seller, the balance still remaining due on said claim shall be and continue a valid and legal indebtedness as against said original purchaser."

Section 7291. "Purchaser may recover payments on failure to sell. — Should the seller or assignee, having regained possession of said property, fail to advertise and sell the same as provided by this article (unless said sale is waived as provided), the original purchaser may recover from said seller or assignee that part of the consideration paid to him, in an action for the same before any justice of the peace or court having jurisdiction of the amount."

Our Supreme Court has construed the conditional sales act in numerous cases.

In Lieberman v. Puckett, 94 Tenn. 273, 275, 29 S.W. 6, the Court said: "The act clearly contemplates two cases, —one where the vendor retakes possession by consent of the purchaser, and the other when it is necessary to regain the possession by process of law in the absence of consent. This can be done by an action of replevin, and if the complainant's right, under his replevin, to hold the property is not controverted as well as when possession is gained by consent, it is the duty of the vendor to at once proceed under the statute to make the sale required. But, where the right to retain the possession under the replevin suit is controverted and litigated, the vendor cannot be said to have regained possession in the sense contemplated by the act for purpose of sale, but he is obligated to hold that possession to await the determination of the contest over the right to possession; nor can the purchaser, so long as he litigates the right of the complainant to retake and retain possession, require that he shall proceed at his peril to make the sale required by the statute."

International Harvester Co. v. Farmer, 174 Tenn. 88, 90, 123 S.W.2d 1089, 1090, held: "If,...