Reeves & Co. v. Bruening

• Decision Date: 10 December 1907
• Citation: 16 N.D. 398,114 N.W. 313
• Court: North Dakota Supreme Court
• Parties: REEVES & CO. v. BRUENING.

16 N.D. 398

114 N.W. 313

REEVES & CO.

v.BRUENING.

Supreme Court of North Dakota.

Dec. 10, 1907.

Syllabus by the Court.

Plaintiff agreed to sell to defendant, and defendant agreed to purchase from plaintiff, a certain threshing rig, and, upon defendant's refusal to accept and settle for such property, plaintiff proceeded to enforce a vendor's lien for the purchase price pursuant to section 6284, Rev. Codes 1905. Plaintiff, without defendant's consent, bid such property in at the foreclosure sale. Held that, the statutory manner of foreclosing such liens being the same as that prescribed for the foreclosure of liens on pledged property, plaintiff had no right, in the absence of defendant's consent, to purchase the property at the sale, and such sale was therefore voidable at defendant's election.

The enactment of section 6296, Rev. Codes 1905, which provides generally that liens upon personal property may be foreclosed upon the notice and in the manner provided for the foreclosure of mortgages upon personal property, did not operate to repeal the special provision relating to the foreclosure of pledged property as contained in chapter 76 of the Civil Code (Rev. Codes 1905, §§ 6193-6218).

The rule of statutory construction that repeals by implication are not favored, and that special provisions of a statute are not repealed by general provisions relating to the same subject-matter unless the legislative intent to that effect is manifest, is stated and applied in the opinion.

Defendant not having consented to, nor ratified, such purchase by plaintiff, the sale was ineffectual to transfer the title of the property to plaintiff. Hence no recovery can be had in this action under the rule of damages prescribed in subdivision 1, § 6573, Rev. Codes 1905, and the district court therefore erred in rendering judgment for plaintiff.

Appeal from District Court, Foster County; E. T. Burke, Judge.

Action by Reeves & Co. against John Bruening. Judgment for plaintiff. Defendant appeals. Reversed, and action dismissed.F. Baldwin and C. B. Craven, for appellant. Turner & Wright, for respondent.

FISK, J.

Plaintiff recovered judgment in the district court of Foster county, and defendant has brought the case here for trial de novo of the entire case.

Plaintiff's cause of action arises out of a contract entered into between the parties on August 17, 1903, by the terms of which the plaintiff agreed to sell to the defendant, and the latter agreed to purchase from plaintiff, a threshing rig consisting of an engine, separator, self-feeder, and other attachments, at the agreed price of $3,100, and freight charges on the same from Columbus, Ind., to Carrington, in this state. Plaintiff contends that defendant refused to receive and settle for said rig pursuant to the contract, and that thereafter, and on August 6, 1904, it foreclosed its vendor's lien thereon by a sale of said property, first having given public notice of such sale as required by law, and having personally served upon defendant a notice of such sale. Plaintiff bid the property in at the foreclosure sale for the sum of $1,500, and the object of this action is to recover the difference between what defendant agreed to pay for said property under the aforesaid sale contract, with interest, less the said sum of $1,500. Plaintiff claims the right to recover said sum as damages under the provisions of subdivision 1, § 6573, Rev. Codes 1905, which reads as follows: “The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is not vested in him is deemed to be: (1) If the property has been re-sold pursuant to Sec. 6284, the excess, if any, of the amount due from the buyer under the contract over the net proceeds of the resale. * * *” Section 6284 is as follows: “One who sells personal property has a special lien thereon, dependent on possession for its price if it is in his possession when the price becomes payable; and may enforce his lien in like manner as if the property was pledged to him for the price.” Several questions are presented by counsel, but the view we take regarding the alleged foreclosure sale renders it unnecessary for us to consider any other question. We are convinced, for the reasons hereinafter given, that such attempted sale was voidable as to the defendant; and hence that plaintiff cannot recover in this action, and, as a necessary consequence, that the trial court erred in rendering judgment in plaintiff's favor. Plaintiff had a special lien upon the property, dependent upon possession, and could enforce such lien only in the manner in which a lien by pledge could have been enforced. Section 6284, Rev. Codes 1905. Turning to chapter 76 of our Civil Codes (Rev. Codes 1905, §§ 6193-6218), relating to pledges, we find two methods of foreclosure prescribed-one by public auction in the manner and upon the notice usual at the place of sale relating to auction sales of similar property (section 6212, Rev. Codes 1905), and the other by a judicial sale under the directions of a competent court, at which latter sale the pledgee may be authorized by the court to purchase at the sale. Section 6218, Rev. Codes 1905. At a foreclosure sale conducted in the manner first mentioned it is clear that in the absence of consent thereto by the pledgor, and none was shown in this case, the pledgee could not become the purchaser of the property sold. Section 6217, Rev. Codes 1905. The chapter on pledge as contained in our Civil Code was evidently borrowed from California; and prior to 1895 the two statutes were identically the same. In 1895 the section of the California Code corresponding with section 6217 of our Code was amended so as to permit the pledgee to purchase at the foreclosuresale without the pledgor's consent. Prior to such amendment, the rule was firmly settled by the Supreme Court of that state in accordance with the construction here adopted by this court. Wright v. Ross, 36 Cal. 414;Hill v. Finigan, 62 Cal. 426. In the latter case it was said: “The section was undoubtedly enacted for the protection of the pledgor, to the end that no unfair advantage be taken of him. It prohibits a pledgee or pledge holder from purchasing the property pledged ‘except by direct dealing with the pledgor.’ By...