Nelson v. Viergiver

• Decision Date: 03 April 1925
• Docket Number: No. 74.,74.
• Parties: NELSON v. VIERGIVER.
• Court: Michigan Supreme Court

230 Mich. 38

203 N.W. 164

NELSON

v.VIERGIVER.

No. 74.

Supreme Court of Michigan.

April 3, 1925.

Appeal from Circuit Court, Kent County; William B. Brown, Judge.

Action of replevin by H. C. Nelson against Peter Viergiver. Judgment for defendant, and plaintiff appeals. Affirmed.

Before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.

Lovelace & Broek, of Muskegon, for appellant.

Don E. Minor, of Grand Rapids, for appellee.

SHARPE, J.

On March 29, 1920, Ralph V. Hubbard gave a written order to plaintiff as agent of the International Harvester Company for a motor truck, the price to be $4,267.50 f. o. b. factory. It provided for the payment of $100 cash and the giving of certain notes for the balance. Possession of the truck was turned over to Hubbard. In August, 1922, the defendant, sheriff of Kent county, levied on the truck to satisfy an execution in his hands obtained in a suit brought by Manna E. Thibout against Hubbard. Plaintiff replevined it. The issue presented was whether title had passed to Hubbard. The case was tried before the court without a jury. He concluded as matter of law that title had passed, and, return having been waived, entered judgment for defendant for its value. Plaintiff insists he was entitled to judgment: (1) Because title had not passed; and (2) because Hubbard, in an application to the secretary of state under Act No. 46, Pub. Acts 1921, stated that he held possession under a ‘conditional sale lien,’ and such application was notice to Miss Thibout that he was not the owner of the truck.

1. The order given for the truck contained the following provisions:

‘In case of failure to make any payment when due, the entire balance of the purchase price and all notes given therefor, shall, at the election of the seller, become at once due and payable.

‘It is agreed that title to the property herein ordered shall not pass to the purchaser until the full purchase price and all notes given therefor have been paid in cash, but nothing herein shall release the purchaser from payment therefor, and after delivery to the purchaser said property shall be held and used at the risk and expense with respect to loss or damage and taxes and charges of every kind.

‘The purchaser further agrees that from the date of delivery and until the entire purchase price is paid in full he will procure and maintain fire, theft, and collision insurance for the benefit of the seller to the amount of the unpaid purchase price, and deliver the policies to the seller.’

By stipulation it was agreed that plaintiff was in fact the vendor of the truck, although the order was given to the company. The notes given were made payable to him. They contained the following provisions:

‘The express conditions of the sale and purchase of International truck and Steel Body, model G. factory No. 5916, for which this note is given, is such that the title, ownership, and right of possession of said property shall remain in the lawful holders of this note until this note and interest and any judgments thereon are paid in full, and, if said note or judgment or any portion thereof shall become due and remain unpaid, I hereby authorize the holders or their agents to enter upon my premises and retake possession of said goods wherever they may be found and payment that shall have been made on this note shall be considered as compensation for the use of said goods ordered.

‘The maker of this note also agrees to have said truck insured at such value as may...