Onyx Soda Fountain Co. v. L'engle

• Decision Date: 10 April 1907
• Citation: 43 So. 771,53 Fla. 314
• Court: Florida Supreme Court
• Parties: ONYX SODA FOUNTAIN CO. v. L'ENGLE.

43 So. 771

53 Fla. 314

ONYX SODA FOUNTAIN CO. v. L'ENGLE.

Florida Supreme Court, Division A.

April 10, 1907

Error to Circuit Court, Duval County; Rhydon M. Call, Judge.

Action by the Onyx Soda Fountain Company against John C L'Engle. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Under a statute avoiding contracts of conditional sales of personal property when the possession remains with the vendee for two years, 'unless such * * * reservation or limitation of use or property were declared by will or deed in writing proved and recorded,' a deed by the vendee only acknowledging the reservation of title in the vendor, does not satisfy the statute.

The fact that the purchaser without record notice of a conditional vendee in possession of personal property possession having so remained more than two years before the purchase, tenders his good offices in assisting the conditional vendor to collect the unpaid money, does not avoid the latter purchase.

COUNSEL

John E. Hartridge & Son, for plaintiff in error.

E. J. L'Engle, for defendant in error.

OPINION

COCKRELL J.

The decision of this case depends upon the construction to be placed upon section 1994, Rev. St. 1892, and its application to the contract here involved. The section reads: '1994. Fraudulent Loans Void.--When any loan of goods and chattels shall be pretended to have been made to any person, with whom or those claiming under him, possession shall have remained for the space of two years without demand and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use of property by way of condition, reservation, remainder or otherwise in goods and chattels and the possession thereof shall have remained in another as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this chapter, and the absolute property shall be with the possession, unless such loan, reservation or limitation or use of property were declared by will or deed in writing proved and recorded.'

It having been shown that the 'goods and chattels' in controversy, a soda water fountain, had remained in the possession of one Martinez for more than two years, the plaintiff, who was the original owner, offered in evidence an instrument under seal executed by Martinez, the conditional vendee, as follows:

'Know all men by these presents, that I, R. J. Martinez, of Jacksonville, in the state of Florida, justly and truly indebted unto the Onyx Soda Fountain Co., of the city of Chicago, in the state of Illinois, in the sum of one thousand dollars, as evidenced by 36 promissory notes, bearing date the 22d day of March, A. D. 1897, maturing in amounts and at times as follows:

'35 monthly, due 22d of each month, starting April 22, 1897, at $28.00 each; 1 due 22d March, 1900, to complete, twenty dollars--with interest 6 per cent. from said date, which said notes were given by me for certain soda water apparatus conditionally purchased of the said Onyx Soda Fountain Co., and now at my place of business in Jacksonville, and which is more particularly described as one Geraldine two-body apparatus, with top in white and gold, order for above, with sundries, dated March 6, 1897, the conditions of said purchase being that possession of said property is to remain with me until default in payment, but title to the same should not pass to me, but until all said notes are paid should remain in the said Onyx Soda Fountain Co.

'Witness my hand and seal this 14th day of May, A. D. 1897.

'R. J. Martinez. [Seal.]

'Witness:

'W. H. Treadwell.

'William L. Gibson.

'Subscribed and sworn to before me this 19th day of May, 1897, and acknowledged same to be his free act and deed.

'[Notarial Seal.]

'Wm. L. Gibson, Notary Public.'

The trial court held that this instrument was not properly 'proven' for record and directed a verdict for the defendant. The acknowledgment is not perfect, but whether it be fatally defective need not now be decided seeing that there is another insuperable objection to the instrument. The 'will or...