North Robinson Dean Co. v. Strong

• Decision Date: 11 March 1914
• Citation: 25 Idaho 721,139 P. 847
• Parties: NORTH ROBINSON DEAN COMPANY, Respondent, v. ELISHA STRONG et al., Appellants
• Court: Idaho Supreme Court

139 P. 847

25 Idaho 721

NORTH ROBINSON DEAN COMPANY, Respondent, v. ELISHA STRONG et al., Appellants

Supreme Court of Idaho

March 11, 1914

CONTRACT-SALE-GOOD FAITH-VALIDITY OF SALE-SUFFICIENCY OF THE COMPLAINT-TENDER-DEMAND FOR ACCOUNT OR RETURN OF HORSES ON OR AFTER JULY 1, 1912-SALE FOR PURCHASE PRICE-RATIFICATION OF SALE-AGENCY.

1. Where an agreement is entered into between the N. R. D. Co. and H., and an action is brought upon the same whereby the respondent seeks to recover the value of the horses sold to defendants, who were purchasers in good faith without any knowledge of the contract between the company and H., the action by respondent makes the sale to H. absolute and the title in the defendants absolute.

2. Held, in this case, that the complaint states a cause of action and the trial court did not err in overruling the demurrer to the complaint.

3. Held, that the plaintiff did not pay or tender payment of the freight charges or feed bill on the horses paid by defendants, and the evidence shows that the defendants paid these charges which were a lien upon the horses, and that the plaintiff never paid the same or tendered payment thereof to the defendants at Ontario, Oregon, or at any other time or place before this suit was brought.

4. Held, that the complaint does not allege that the plaintiff made a demand on Hurd to pay or account for or return the horses on or after the 1st day of July, 1912.

5. Held, that the present action is not an action to set aside the sale by Hurd to the defendants, but an action for the purchase price, which ratifies the sale by plaintiff to Hurd and the sale by Hurd to the defendants.

6. Held, that there is no indication in the alleged agreement of an agency, but the record shows that Hurd did not sell the horses to defendants as an agent. He signed the bill of sale as "Hurd." The plaintiff shipped the horses to Hurd personally.

APPEAL from the District Court of the Fifth Judicial District for Bear Lake County. Hon. Alfred Budge, Judge.

An action to recover for the purchase price of personal property. Judgment set aside.

Judgment set aside and cause remanded. Costs of this appeal awarded to appellants. Petition for rehearing denied.

T. L Glenn and John A. Bagley, for Appellants.

The plaintiffs did not show facts that entitle them to maintain this action against the defendants. Their only remedy, if any, is against Hurd. This is an action for the purchase price. By bringing this action the plaintiffs make the sale to Hurd absolute and the title in the defendants absolute. (Bailey v. Hervey, 135 Mass. 172; Butler v Hildreth, 5 Met. (Mass.) 49; Peasley v. Noble, 17 Idaho 686, 134 Am. St. 270, 107 P. 402, 27 L. R. A., N S., 216; Pease v. Teller Corp., 22 Idaho 807, 128 P. 981.)

After the sale by Hurd to the defendants the plaintiffs must look to Hurd alone. (New Haven Wire Co. Cases (Baring v. Galpin), 57 Conn. 352, 8 A. 266, 5 L. R. A. 300; Bent v. Jerkins, 112 Ala. 485, 20 So. 655; Wilder Co. v. Wilson, 16 Lea (Tenn.) 584.)

A. B. Gough, for Respondent.

"If the goods are sold to a retail dealer for the purpose of a resale, or consent to a resale in the ordinary course of trade is given, a bona fide purchaser acquires a good title; but the purchaser of a whole stock of goods does not stand on the footing of a bona fide purchaser; nor does the fact that the buyer is a dealer in such goods give his subpurchaser the rights of a bona fide purchaser if the right of resale is expressly restricted." (35 Cyc. 680, 681.)

When five ranchers, who are not in the market for such livestock, go in together and purchase four stallions they have never seen, in payment of an indebtedness to them in more than double the amount they consider the stallions are worth, it cannot consistently be urged that they are bona fide purchasers. These stallions were wrongfully detained from respondents by the appellants, so the action is properly brought. (Sec. 4054 (3), Rev. Codes; Lowe v. Ozmun, 137 Cal. 257, 70 P. 87.)

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

The complaint in this case alleges that the plaintiff is a corporation organized and existing under the laws of the state of Nebraska and doing a business of importing, raising, buying and selling stallions and other horses, with its principal place of business at Grand Island, Nebraska; that at the time mentioned in this complaint the plaintiff was, and still is, the owner of four certain stallions described as follows: The Percheron stallion Lacon, 80,951, of the value of $ 400; the Percheron stallion Colin, 71,411, of the value of $ 600; the Percheron stallion Bertini, 71,405, of the value of $ 600; and the Belgian stallion Bristol de Borsleke, 4408 (43,254) of the value of $ 750; which four stallions were in the possession of C. H. Hurd at Ontario, Oregon, under and by virtue of a contract with plaintiff, by the terms of which said stallions remained the property of plaintiff until fully paid for by said Hurd, and if not paid for by July 1st, 1912, were to be returned and delivered to plaintiff; a copy of the contract is made a part of the complaint.

It is further alleged that on or about the 20th of April, 1912, at Ontario, Oregon, the defendants wrongfully came into the possession of said four stallions under and by virtue of an attempted chattel mortgage from Hurd to defendants, a copy of which chattel mortgage is made a part of the complaint. It is also alleged that before the commencement of this action, on the 1st day of July, 1912, the time expired on which the said C. H. Hurd was to remit and account for or return to plaintiff the four stallions, and that he has not remitted therefor or returned same to plaintiff as provided for in the contract, and thereupon the plaintiff became entitled to the immediate and exclusive possession of the four stallions; that the defendants still wrongfully hold and possess said stallions; that on the 2d of July, 1912, plaintiff demanded possession of said stallions from defendants, and that notwithstanding such demand defendants still unlawfully withhold and detain said stallions and chattels from the possession of plaintiff to its damage, in the sum of $ 2,300; wherefore judgment is demanded against defendants in the sum of $ 2,300 and for costs.

The contract attached to the complaint was executed by plaintiff as first party and C. H. Hurd as second party, and provides that the second party has received from the first party the four stallions heretofore described. The contract provides:

"The above described animals are delivered to and accepted by the second party, to be paid for and accounted for by him to the first party, at the net prices above stated, as fast as disposed of by the second party, he agreeing that he will pay to the first party at Grand Island, Nebraska, for each and every one of said animals the said net prices, as fast as and when any of them are sold or disposed of by him, and that on or before the first day of July, 1912, he will either pay, remit or account to said first party, the said full amounts for each and every one of said animals, at the prices stated, or return same on said last-named date to the first party at Grand Island, Nebraska, in as good condition as when received, all charges, expenses, freight and other outlays connected with the handling, care, keep and protection of said animals to be borne by the second party, the net prices to be paid to the first party on the schedule above stated.

"It is further agreed that as fast as said second party sells or disposes of said animals, he will within two days thereafter, remit and pay to the first party at Grand Island, Nebraska, the above net prices thereof.

"The title to said property and animals, and all monies received therefor, up to the net prices above stated, shall at all times remain in the first party, until fully accounted for and paid to the first party at Grand Island, Nebraska. Second party to keep first party advised at all times as to the location and condition of said animals, the number on hand, such reports to be made in writing every 10 days. Said animals to be handled wholly at the risk of second party, who shall pay first party for any loss, damage or injury occasioned by death or otherwise. In case second party shall fail to remit for any of said animals of this contract, first party can at his option terminate same and take possession of said animals at any place found. Second party in such case to pay all expenses incurred thereby and freight thereon to Grand Island, Nebraska, and account and pay for all animals not recovered at said time."

The contract is dated April 11, 1912, and signed by the plaintiff company as the first party, and C. H. Hurd as second party.

There is also included in the record, as plaintiff's exhibit "B," the following bill of sale:

"Whereas I, Charles H. Hurd, of Grand Island, Nebraska, am justly indebted to Elisha Strong on two notes, one for $ 365.00 and one for five hundred and thirty-six dollars, also the said Strong and one George Alley in the sum of twelve hundred and fifty-five dollars, and to Jacob Jones, Hyrum Smith and Sidney W. Kent in the sum of six hundred and thirty-nine dollars, all of my said creditors being residents of Bear Lake County, Idaho.

"Now in order to pay each of my said debts in full, including interest, freights, livery bills, and traveling expenses of said parties, in the handling of the hereafter described property including charges for livery bills and freight now due on said property at Ontario, Oregon, I hereby sell, transfer and set over to the sole use and benefit of said parties the following described stallions, to wit:

"One Chestnut Sorrel Horse Stallion, coming six...