Pease v. Teller Corp., Ltd.

• Decision Date: 14 May 1912
• Citation: 128 P. 981,22 Idaho 807
• Parties: PERCIVAL S. PEASE, Appellant, v. TELLER CORPORATION, LIMITED, a Corporation, Respondent
• Court: Idaho Supreme Court

128 P. 981

22 Idaho 807

PERCIVAL S. PEASE, Appellant, v. TELLER CORPORATION, LIMITED, a Corporation, Respondent

Supreme Court of Idaho

May 14, 1912

CONDITIONAL SALE CONTRACT-TITLE OF PROPERTY-PAYMENT-WAIVER-DUTY OF COURT IN RENDERING JUDGMENT.

(Syllabus by the court.)

1. A contract signed by the seller and purchaser of a printing-press, in which it is provided that the purchaser will pay for the same in instalments at fixed dates, and such payments are evidenced by promissory notes, and in which contract it is also agreed that should default be made in payment of any of the rent at the times or in the amounts the seller has the right to retake the property, and that all money paid is to be retained, and that the title to the property sold does not pass until the entire payment has been made, is a conditional sale wherein the title of the property is reserved in the seller until final payment is made.

2. In a conditional sale contract, where title is reserved in the seller until payment is made by the purchaser, the sale can only be completed and title passed upon payment of the purchase price of said property.

3. Where a conditional sale contract provides that the purchase price is to be made in instalments at certain dates, and the purchase price is not paid at the times stated in the contract, and the 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.

4. Under a conditional sale contract, where payments are to be made in instalments at certain dates and the title to the property is reserved in the seller until such payments are made, and all the payments are made except the last payment which is a small proportion of the entire purchase price, and upon default in such payment the seller makes no effort to retake the property for a period of six months, and no steps are taken to collect the purchase price, and the facts show no intention to rescind the contract or declare a forfeiture because of nonpayment, and thereafter attempts are made to collect by demand the balance of the purchase price, and the seller then demands possession of the property, and the purchaser tenders the amount due on the purchase price with interest, the seller cannot maintain an action in replevin against the pur- chaser where such tender is made good by depositing the same in the court where said action is pending for the use and benefit of the seller.

5. Where the entire facts are presented to the court in an action to enforce the specific performance of a contract, the rights of the parties to the contract should not be adjudged upon technical or narrow questions or considerations so as to do injustice to the parties to the contract, but the court should give full consideration to all the facts and the intention and action of the parties, and give such judgment as will be just and equitable to the parties thereto.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action in replevin to recover the possession of personal property. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent. Petition for rehearing granted.

Eugene O'Neill, for Appellant.

Under conditional sale agreements that title shall not pass until full payment provided by the contract, title does not pass until such payment. (Barton v. Groseclose, 11 Idaho 227, 81 P. 623; Kester v. Schuldt, 11 Idaho 663, 85 P. 974; Mark Means Tsf. Co. v. McKinzie, 9 Idaho 165, 73 P. 135; Parke etc. Co. v. White River Lumber Co., 101 Cal. 37, 35 P. 442; Studebaker Bros. v. Mau, 13 Wyo. 358, 110 Am. St. 1001, 80 P. 151; Harkness v. Russell, 118 U.S. 663, 7 S.Ct. 51, 30 L.Ed. 287.)

"Courts of equity have not the power to make contracts for parties, nor to alter those which the parties have deliberately made . . . . and when it also appears that the purchaser is without excuse for his delay, the courts will not relieve him from the consequences of his default." (Grey v. Tubbs, 43 Cal. 359; Martin v. Morgan, 87 Cal. 203, 22 Am. St. 240, 25 P. 350; Grigg v. Landis, 4 C. E. Green (19 N. J. Eq.), 350.)

Plaintiff had but one remedy under the terms of this conditional sale contract. He has sued upon the contract in claim and delivery, and having elected, if election he had, has excluded all rights to sue upon the note. (Parke etc. Co. v. White River Lbr. Co., 101 Cal. 41, 35 P. 442; Bailey v. Hervey, 135 Mass. 174.)

The action in claim and delivery showed the court the nature of the action, and if there was an election, plaintiff had elected, and it was not the province of the court to prevent such election, and if made, could not take away the right by finding contrary thereto. (Matteson v. Equitable Min. & Mill Co., 143 Cal. 436, 77 P. 144; Holt Mfg. Co. v. Ewing, 109 Cal. 353, 42 P. 435.)

Fred E. Butler, for Respondent.

An instrument in form a lease, where the amount to be paid as rent is the purchase price of the article, is a conditional sale. (35 Cyc. 656, and cases cited, and 34 Cyc. 1342.)

Where goods have been sold reserving the title as security for the purchase money, a large portion of which has been paid, without demand, a tender on demand of the amount remaining due is sufficient to retain in vendee the right of possession. (O'Rourke v. Hadcock, 114 N.Y. 541, 22 N.E. 33; Taylor v. Finley, 48 Vt. 78; New Home Sewing Machine Co. v. Bothane, 70 Mich. 443, 38 N.W. 326; People's Furniture Co. v. Crosby, 57 Neb. 282, 73 Am. St. 504, 77 N.W. 658.)

STEWART, C. J. Sullivan, J., concurs, Ailshie, J., concurs in the conclusion.

OPINION

STEWART, C. J.

This action was brought in the district court of Nez Perce county by appellant to recover from the defendant certain personal property consisting of a printing-press complete, and the action is founded upon the following contract:

"PACIFIC PRINTERS SUPPLY COMPANY.

"317 Second Avenue South, Seattle, Wash.

"CONDITIONAL SALE AGREEMENT.

"THIS AGREEMENT, made and entered into this 22d day of April, 1909 by and between Pacific Printers Supply Company (a corporation) of Seattle, Washington, the party of the first part, and Teller Corporation, Limited, of Lewiston, Nez Perce County, Idaho, the party of the second part,

"WITNESSETH, that in consideration of the covenants, promises and agreements hereinafter contained on the part of the party of the second part, to be by it kept and performed, said party of the first part does hereby lease and let unto said party of the second part the following described personal property, to-wit:

"One No. 8 Babcock Dispatch Printing Press Complete Rebuilt, Factory No. 1206, which is now situate at Lewiston, Nez Perce County in Idaho and the said party of the second part hereby acknowledges the receipt and possession of the whole of said personal property, at said place and covenants, promises and agrees to and with said party of the first part, as follows, to-wit:

"That it will pay to the said party of the first part, its successors or assigns, for the said use of property, the sum of Twenty-three hundred Eighty-eight and no/100 dollars, and interest, as follows: [Then follows a description of the notes.] With interest on said amount from the date of maturity of notes covered by this agreement until paid, at the rate of 8 per cent per annum, said payments to be evidenced by interest-bearing promissory notes, made by the party of the second part; that it will safely keep and carefully use the said property, and not sell or attempt to sell, remove or attempt to remove the same, or any part thereof, from the place where the same is now situate, as hereinbefore set forth; that it will pay all taxes on said property during the time it is in possession of the same; that it will pay the premium on a policy, or policies, of insurance to be taken out by the said party of the first part, on said property covering the time said property shall be in possession of the party of the second part, in a sum not less than Twelve Hundred Dollars; such premium to be paid upon the delivery to the said party of the first part of such policy; that at the expiration of the term herein granted it will deliver the whole of said property to the said party of the first part, f. o. b., Seattle, Washington, in as good condition as the same now is, or may hereafter be put into, wear from reasonable use thereof excepted; that should default be made in the payment of any of the rent at the times or in the amounts, as hereinbefore provided or should the party of the second part violate or fail to keep any of the promises or agreements herein contained, on its part to be observed or kept, then in such event the said party of the first part, its agents or assigns, may at any time thereafter enter upon any premises where said above described property, or any part thereof, may be and take possession and remove the same without let or hindrance from the party of the second part, and it being expressly understood and agreed that any and all money paid, or property delivered, under and by virtue of this agreement is paid or delivered, for the use of said property and is the sole property of, and to be retained by, the said party of the first part on account of such use.

"The said party of the first part agrees and binds itself that upon the payment to it by the party of the second part of said sum of Twenty-three Hundred Eighty-eight Dollars, with interest as aforesaid, at the times and in the amounts, as aforesaid, it will execute and deliver to the party of the second part a good and sufficient bill of sale of said property, conveying...