Rice v. Lusky Furniture Co.

• Decision Date: 24 February 1934
• Parties: RICE v. LUSKY FURNITURE CO.
• Court: Tennessee Supreme Court

Page 107

68 S.W.2d 107

RICE v. LUSKY FURNITURE CO.

Supreme Court of Tennessee.

February 24, 1934.

Appeal in error from Circuit Court, Davidson County; A. B. Neil, Judge.

Suit by John H. Rice against the Lusky Furniture Company. Judgment of dismissal, and plaintiff appeals in error.

Affirmed.

Elkin Garfinkle, of Nashville, for plaintiff in error.

J. L. Reynolds, of Nashville, for defendant in error.

GREEN, Chief Justice.

This is a suit by the conditional vendee of certain personal property against his conditional vendor, the latter having regained possession of the property, to recover the amount of the payments made by the vendee. The suit was dismissed by the trial judge and the plaintiff has appealed in error.

The facts of the case and the issue presented for decision appear in the stipulation upon which the case was tried, as follows:

"The plaintiff purchased furniture by Conditional Sales Contract in May, 1930, from the defendant, totaling $468.50. He made payments to the plaintiff reaching an aggregate total of $260.15. He defaulted in his payments and in May 1932 was in Kentucky. Part of the furniture was in his home and part in the homes of neighbors. After discussing the matter with the wife of the plaintiff, the defendant sent out and re-possessed said furniture without any replevin warrant, or without any notice or the consent of the plaintiff. After re-possessing said furniture notices were posted, as required by law, and the furniture was sold as required by law for $100.00. There was a balance of $208.35 due on said furniture and said furniture was worth $100.00 at the time of its repossession.

"The question involved is whether the plaintiff is entitled to recover the amount of money paid by him, to-wit: $260.15, or whether the cause should be dismissed because the value of his interest in the property was less than the amount owing thereon."

The circumstances under which the vendor regained possession of the furniture are meagerly stated in the stipulation, but it may be assumed, as the vendee insists, that the repossession was neither by consent of the vendee nor by process of law, and was therefore a conversion. Murray v. Federal Motor Truck Sales Corporation, 160 Tenn. 140, 22 S.W.(2d) 227, 23 S.W.(2d) 913.

It will be observed from the stipulation that, after regaining possession of the property, "notices were posted, as required by law, and the furniture was sold as required by law for $100.00." So far as advertisement and sale were concerned, the vendor is stipulated to have complied with the statute. Only the reacquisition of the property by the vendor is assailed as irregular.

The provisions of our statutes regulating conditional sales are familiar. Section 7287 prescribes with some detail the manner in which the vendor, having regained possession of the property, shall advertise and sell the same and what shall be done with the proceeds. Section 7291 of the Code thus provides:

"Should the seller or assignee, having regained possession of said property, fail to advertise and sell the same as provided by this article (unless said sale is waived as provided), the original purchaser may recover from said seller or assignee that part of the...