Pfeiffer v. Norman
| Decision Date | 26 October 1911 |
| Citation | 133 N.W. 97,22 N.D. 168 |
| Parties | PFEIFFER v. NORMAN |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Templeton, J.
Action by William Pfeiffer against M. Norman. From a judgment on motion for judgment notwithstanding the verdict, or for a new trial, plaintiff appeals.
Affirmed.
W. J Mayer, for appellant.
Murphy & Duggan, for respondent.
OPINION
The material facts in this case are as follows: On the 22d day of October, 1906, respondent delivered to one Downey certain furniture, rugs, window shades, etc.; the value and price of each article being agreed upon in the contract entered into. Such contract provided that Downey had purchased of respondent the temporary right to the furniture and property therein named, and that by prompt payment of certain sums monthly to respondent, amounting in the aggregate to the price placed upon the property, the respondent should execute to him a bill of sale. The last payment became due February 2, 1907. The agreement contained certain provisions regarding the care and use of the chattels, and the further provision that, if he should make default in any of the payments agreed to be made or in any of the conditions of the contract, the respondent was authorized and empowered at his election at once, without notice, to resume possession of said property and to take the same wherever situated, but in such case all payments theretofore made should be forfeited to the use of the respondent; and that if the same should deteriorate or be damaged more than by ordinary wear and tear, he should be entitled to resume possession at once, and without notice, and in the same manner as if default had been made in any of the other conditions. Time was made of the essence of the contract.
The evidence shows that payments were made by the purchase of feed from a firm of which Downey was a member, on the agreement that the purchase price should be applied on this contract. A balance still remained due when this action was brought and tried, and Downey misused the furniture and other materials, and abandoned it. Thereupon, and with the consent of Downey and appellant, respondent took possession thereof. Downey subsequently requested that he be allowed to complete payment therefor, but no payment was made after May 11, 1907 and after storing it for two years respondent sold the goods at private sale. In the meantime Downey's firm dissolved partnership, and he assigned all his claims to a repayment of the payments made on such chattels to the appellant, his former partner and in September, 1909, appellant brought this action to recover the whole amount paid.
It is only necessary to give a brief abstract of the complaint. It alleges the purchase of the chattels by Downey; the price to be paid therefor; that by the terms of their agreement respondent was empowered to rescind the same for failure to perform on the part of Downey; the payments made; and that respondent, having elected to rescind said contract, seized and repossessed himself of the goods and disposed of the same to his own use; the assignment of Downey's claim to appellant; and a demand for a return of all the money paid on the contract to the respondent, and the refusal of such demand. The answer contains the usual qualified general denials; admits the execution of the contract, and a difference in the articles in price, which difference is sustained by the evidence without conflict; an allegation that Downey failed to pay any part of the price of such property, and delivered all of the same to the defendant for storage at the rate of $ 2 per month; that it was stored by him for two years; that he repeatedly requested Downey to pay for the same, but that he failed to do so; that no notice of any transfer of any obligation to the appellant was ever given respondent; and an admission of partial payment, through the purchase of feed of appellant's and Downey's firm, and that it was credited to the account of said Downey. The answer contains a further allegation that in "the month of January, 1909, respondent elected to rescind and cancel said contract for the reason that no other settlement of said contract seemed probable, and the goods were constantly deteriorating in value; that it had been used and marred and injured, and was of the value of $ 35 and no more." It also sets up a counterclaim against the appellant for goods sold him, which it is unnecessary to further notice, as the amount involved is not in controversy, neither is the validity of the counterclaim. No demurrer or motions were interposed to the answer, and the case was duly tried to a jury. After both parties had rested, respondent moved for a directed verdict, on the ground that the facts proved were insufficient to constitute a cause of action in any sum, and that upon the pleadings and proof it conclusively appeared that Downey was indebted to the respondent in the sum of $ 19.50, and that if the plaintiff was the owner of the rights and burdens of Downey he was indebted to the respondent in the sum of $ 31.15, and upon other grounds which are immaterial. The motion was denied, and the jury returned a verdict in favor of appellant for $ 40.75 damages, whereupon respondent submitted a motion for judgment non obstante veredicto or for a new trial, in brief upon the grounds stated in his motion for a directed verdict. This motion was granted and judgment entered for the respondent for $ 12, a portion of the counterclaim. From this judgment an appeal was duly perfected.
After considering the record, we are satisfied that only two questions are presented: (1) What was the effect of the pleadings upon the issue; and (2) the nature of the contract between respondent and Downey, and the rights of the parties under it.
1. The appellant's case is built up on the theory that, because he pleads a rescission of the contract by the respondent, and that in his answer the respondent admits a rescission, appellant is entitled to a return of all sums paid. It is contended by the respondent that the word "rescission" was "artlessly" used in his answer, and that it is not to be taken in the sense or meaning that the respondent had elected to rescind in such a sense that he must return everything of value received from appellant or Downey.
We find several authorities which use the word "rescind" or "rescission" to designate the act of taking possession of property sold on a conditional-sale contract, wherein such taking possession is not construed as a technical, legal rescission, entitling the vendee to recover payments made. Patterson v. Murphy, 41 Neb. 818, 60 N.W. 1; Bryson v. Crawford, 68 Ill. 362. But it is elementary that the words of a pleading must be construed with reference to the context. When the answer of the respondent is read as a whole, and particularly the allegation in which the word "rescission" is used, we are satisfied that a fair construction of its terms does not lead to the conclusion that he was pleading a rescission in the statutory sense. The answer must also be read in the light of the allegations of the complaint. Appellant set out in effect the terms of the agreement by which Downey received possession of the furniture, and then in construing the terms of such agreement, which was received in evidence, he alleges that under its terms the respondent is authorized and empowered to rescind the same, etc.; and that, having elected to rescind said contract, he seized and repossessed himself of the goods.
The respondent in his answer, after setting out the terms of the contract and other items of defense, alleges that the defendant did elect to rescind and cancel said contract for the reason that no other settlement of said contract seemed probable, and the goods were constantly deteriorating in value, and under the terms of said agreement said defendant, as authorized by said contract of sale, possessed himself of the said furniture.
We think that the meaning of the words "rescind" and "cancel" is modified by the later allegation explaining how he rescinded and canceled said contract,--namely, by retaking possession thereof, which he was authorized to do by the contract,--and that the only interpretation which can properly be placed upon the allegation of the respondent's answer is that he repossessed himself of the goods described, as he was permitted to do by the terms of the contract.
2. We have no doubt that the contract in question in this case, although drawn in the form of a lease, was in law a conditional-sale contract; but, be that as it may, it must be so treated for the reason that it is so considered and discussed by both appellant and respondent, and unquestionably it was so treated by them in the trial court. This being true, we will determine what the rights of the appellant were under that contract.
That a conditional-sale contract does not convey title, and entitles the vendor to retake possession thereof when it has been delivered to the vendee, on default in the terms of the contract, and that the rights of the vendee are terminated when this is done, has been held several times by this court. Hawk v. Konouzki, 10 N.D. 37, 84 N.W....
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