Ritchie v. Hilmer
| Decision Date | 14 June 1960 |
| Docket Number | No. 49967,49967 |
| Parties | Howard RITCHIE, d/b as Ritchie Pontiac Company, Appellee, v. LeRoy HILMER and Florine Hilmer, husband and wife, Appellants. |
| Court | Iowa Supreme Court |
Dennis D. Damsgaard, Waterloo, for appellants.
Sager, Engelbrecht & Hemingway, Waverly, Frederick G. White, Waterloo, for appellee.
Under plaintiff's petition for a writ of replevin, wherein it is alleged that he is the owner and entitled to the immediate possession of a certain Pontiac Automobile, then in the possession of the defendants, the car was taken and delivered to plaintiff. By answer defendants deny the allegations of the petition, ask that the petition be dismissed and that they be given judgment for the value of the car, or in the alternative, that the car be returned and for damages for its unlawful detention. Upon the trial to the court without a jury, the court found plaintiff to be entitled to the immediate possession and entered judgment against defendants for costs. They have appealed.
There is no dispute as to the material facts. Plaintiff, Harold Ritchie, held a Pontiac Agency and on July 15, 1958, under a conditional sales contract, sold and delivered to the defendants the automobile in question. Under the terms of this contract, plaintiff retained title thereto until the full purchase price had been paid under a monthly payment plan. It also provided that upon default in the payments, plaintiff was entitled to repossess the same. On July 23, 1958, plaintiff sold and transferred this contract, by a general indorsement, to the State Bank of Waverly, Iowa, and received full payment thereon. The defendants were notified of the assignment and thereafter made some payments to the Bank. In January 1959, defendants being in arrears, plaintiff and a representative of the Bank called upon the defendants and requested the possession of the automobile, which was refused. Plaintiff then commenced this action with the result above noted.
I. Replevin is a law action triable by ordinary proceedings and is reviewed upon assigned errors. Section 643.2, Code 1958, I.C.A.; Glenn v. Keedy, 248 Iowa 216, 80 N.W.2d 509. When tried to a court without a jury, the findings of facts have the force of a jury verdict, binding upon this court if based upon substantial proof. Donahoe v. Casson's Market, Inc., 248 Iowa 1106, 84 N.W.2d 29; Cleary v. Wolin, 244 Iowa 956, 58 N.W.2d 830; Rule 334, R.C.P., 58 I.C.A.
II. The immediate right to possession is gist of a replevin action and whatever be the right or want of right of the defendant, if the plaintiff be not entitled to present possession he cannot prevail. Marienthal, Lehman & Co. v. Shafer, 6 Iowa 223; Mutual Surety Co. of Iowa v. Bailey, 231 Iowa 1236, 3 N.W.2d 627; Lyons v. Shearman, 245 Iowa 378, 62 N.W.2d 196. The trial court found plaintiff entitled to immediate possession, and while defendants assign several errors, they boil down to the single question: did the trial court err in so finding under this record? In other words, is there substantial proof in the record to sustain this finding. If so, the judgment must stand.
III. The conditional sales contract authorizes immediate repossession by the vendor in case of a default by the vendee in the scheduled payments. The trial court found, supported by ample proof, that the defendants were in default in their payments, and if nothing more appeared in the record, the trial court was correct as to the possession. However, within one week after the signing of the contract, plaintiff, vendor, sold and assigned the same to the Bank, under a general indorsement, and received full payment thereon. The Bank assumed full control, notified the defendants of the assignment and received payments thereon. By such an assignment all right, title and interest which plaintiff had therein was transferred to and became the absolute property of the Bank. State Savings Bank of Sharpsburg v. Universal Credit Co., 233 Iowa 247, 8 N.W.2d 719; 78 C.J.S. Sales § 641-b; 47 Am.Jur. Sales, sec. 931. By the same token, all the rights of the vendor, plaintiff, were extinguished. 78 C.J.S. Sales § 641(2, a); 47 Am.Jur. Sales, sec. 929. That the plaintiff was cognizant of this situation is evidenced by his testimony that when defendants came to him and requested an extension of time to make the payments, he told them they would have to see the Bank. Until and unless a conditional sales contract which has been assigned, for other than security purposes, is re-assigned to the assignor, said assignor is not...
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