Schleiff v. McDonald

• Decision Date: 29 June 1925
• Citation: Schleiff v. McDonald, 41 Idaho 50, 237 P. 1108 (Idaho 1925)
• Parties: H. SCHLEIFF, Appellant, v. C. R. MCDONALD, W. L. RICE, and JOSEPH A. DEMAI, Respondents
• Court: Idaho Supreme Court

237 P. 1108

41 Idaho 50

H. SCHLEIFF, Appellant, v. C. R. MCDONALD, W. L. RICE, and JOSEPH A. DEMAI, Respondents

Supreme Court of Idaho

June 29, 1925

BILL OF SALE AND OPTION TO REPURCHASE - MORTGAGE OR PLEDGE - CLAIM AND DELIVERY-RIGHT OF POSSESSION.

1. Whether the bill of sale and the agreement to repurchase constitute a mortgage or a pledge is, on conflicting evidence, a question of fact in this case properly to be determined by a jury.

2. In an action of claim and delivery the real question in issue is the right to possession of the property in controversy and it is competent for either party to offer evidence to show that the other party did not have the right of possession at the time the action was commenced.

3. An action in claim and delivery may be maintained by one having a qualified property in the goods, if he has the right of possession.

4. Provisions in a chattel mortgage which authorize the mortgagee upon certain contingencies to take immediate possession of the property authorize an action of claim and delivery.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Robert M. Terrell, Judge.

Action for claim and delivery. Judgment for defendant. Reversed and new trial granted.

Case reversed, with instruction. Costs awarded to appellant.

William Edens, for Appellant.

A pledgee is entitled to possession of the property pledged. (C. S., secs. 6388, 6389.)

A mortgagee is entitled to possession of mortgaged property as against a third person, where the conditions of the mortgage have been broken. (Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079.)

Budge &amp Merrill, for Respondents.

The verdict of a jury will not be set aside if the evidence is conflicting. (C. S., sec. 7170; State v. Shepard, 39 Idaho 666, 229 P. 87; Roseborough v. Whittington, 15 Idaho 107, 96 P. 437; Herculith Co., Ltd., v Gustafson, 22 Idaho 537, 126 P. 1050; Watkins v Mountain Home Co-op. Co., 33 Idaho 623, 197 P. 247.)

GIVENS J. William A. Lee, C. J., Wm. E. Lee and Taylor, JJ., concur.

OPINION

GIVENS, J.

Appellant Schleiff sued respondents McDonald, Rice and DeMai to recover possession, or the value of a Reo automobile. McDonald and DeMai defaulted and Rice answered, denying that appellant was the owner and alleging ownership in himself, and that if appellant had any interest in the car it was by way of a mortgage.

A judgment of nonsuit on motion of respondent Rice was granted and thereafter an appeal was taken to this court, which reversed the judgment and remanded the case for a new trial (Schleiff v. McDonald, 37 Idaho 423, 216 P. 1044), and at the new trial the jury returned a verdict in favor of respondent Rice for a return of the car, fixing its value at $ 400. From the judgment entered on such verdict this appeal is taken.

Appellant's first three assignments of error,--that the court erred in denying plaintiff's motion for a directed verdict; in submitting the cause to the jury; and in rendering judgment in favor of the defendants,--are all based on the insufficiency of the evidence to support the verdict.

The record discloses that DeMai gave a bill of sale to the automobile in question to Schleiff and received in return an agreement permitting his repurchase of the car for a certain sum within a certain time. DeMai thereafter gave a bill of sale to Rice, Rice therein agreeing to pay Schleiff. Schleiff contends the transaction between him and DeMai was a sale and an option to repurchase. Rice contends that it was a mortgage. Whether the bill of sale and the option to repurchase constituted a mortgage or a pledge presented an issue of fact to be determined in this case by the jury and the motion for a directed verdict was properly denied. (Thompson v. Burns, 15 Idaho 572, 99 P. 111; Idaho Implement Co., Ltd., v. Lambach, 16 Idaho 497, 101 P. 951; Bergen v. Johnson, 21 Idaho 619, 123 P. 484; Keane v. Kibble, 28 Idaho 274, 154 P. 972.)

The court admitted in evidence the agreement between DeMai and Rice. If the transaction between DeMai and Schleiff was a mortgage, then DeMai could sell his remaining interest in the car, which, in this case, Rice claims to have purchased, therefore the court was correct in permitting Rice to introduce such evidence to show his ownership, and the testimony of Knowles as to what took place between himself and DeMai, to the effect that DeMai demonstrated and exhibited the car to him, admitted as tending to show possession, was also proper.

The testimony of conversations between certain witnesses was all had in the presence of Schleiff and therefore admissible as tending to show the debt existing between Schleiff and DeMai, all bearing directly on whether or not the original transaction was a mortgage. (Carstensen & Anson Co. v. Wright, 25 Idaho 492, 138 P. 830; Idaho Placer Min. Co., Ltd., v. Green, 14 Idaho 249, 93 P. 954.)

Appellant further complains of the action of the court in giving instructions No. 1 and No. 5. A portion of instruction No. 5 was as follows:

"As to the affirmative defense of the defendant Rice to the effect that if the said plaintiff Schleiff has, or had, any right, claim or interest in and to said property it was, and...