"This is a replevin suit involving the right of possession of one Chevrolet automobile.
"On June 10th, 1931, defendant purchased this automobile from the Jim Reed Chevrolet Company, of Nashville, under a conditional sales contract, for $645. She paid $125 in cash and executed a note for $497.90, the balance of the purchase price, plus $67.90 for `handling charges,' said note being payable in monthly installments of $41.56. The payee negotiated said notes to the plaintiff. Defendant met the first two deferred payments promptly, but before the third became due plaintiff instituted this suit upon the ground that defendant was attempting to dispose of said automobile in violation of her contract. This conclusion was based upon the fact that defendant and a young man named Herring drove said automobile to the sales room of Parnell, an automobile dealer, and Herring stated to Parnell that they wished to sell the car as they intended to leave the state; that the car was purchased in the name of defendant under a conditional sales contract; that the purchase money notes were held by the plaintiff and stated the amount thereof. Parnell telephoned the plaintiff, ascertained the statement of Herring to be correct, asked plaintiff what it would discount the notes for, and was offered a very small discount. Parnell thereupon stated to Herring that he would pay off the debt to plaintiff for the car, but that he could pay them nothing for their equity in the car. This ended the matter and no sale was made. We are unable to see anything in this incident to indicate any bad faith on the part of the defendant, or any purpose to impair or endanger plaintiff's security. Plaintiff, in effect, seems to have recognized the right of defendant to consummate such a deal because, being advised that defendant wished to realize on her equity in the car, it agreed with Parnell if he would take up the notes it would allow him a discount.
"The provision of the contract relied upon by plaintiff is as follows:
"`Should the buyer fail to keep and perform any or all of his agreements herein contained, and to promptly pay at maturity any and all sums hereunder, or if said Car is removed or attempted to be removed from the State in which the Buyer now resides, or to be otherwise disposed of, or if Buyer shall lend, sell, or encumber, or shall attempt to sell or encumber said Car or in case of misuse or abuse thereof, or whenever the Seller or his assigns shall deem the debt insecure, said Seller may without any demand or notice take possession of said Car and equipment, wherever found and without process of law, and all rights of the Buyer hereunder shall cease and terminate thereupon absolutely.'
"This court has held repeatedly that, notwithstanding the foregoing provision, possession, authorizing or requiring a sale by the conditional vendor under the statute, must be regained by process of law (by replevin usually) or by agreement of the parties, Mitchell v. Automobile Sales Co., 161 Tenn. 1, 4, 28 S.W.(2d) 51, 83 A.L.R. 955, and cases cited therein.
"By section 7293, Code 1932, it is provided
"`If the purchaser of personal property, under a written and/or printed contract of such a conditional sale, shall, without having paid for the same, and without the consent of the seller or assignee, sell, give away, or otherwise dispose of or conceal such personal property, with the intention of depriving the seller or his assignee of such property, or of its proceeds, so that said seller or assignee cannot, by due process of law, recover possession of said property, when so entitled under the terms of his said contract, said purchaser shall be guilty of a misdemeanor, and be confined in the county jail or workhouse for a period of not more than six months, or shall be fined not more than fifty dollars, or both.'
"Construing the contract here involved in conjunction with the foregoing statute, it appears to us that it was the intention of the parties that the right of the seller to repossess the car should be accelerated whenever the buyer committed or attempted to commit an act which would tend to endanger or destroy the seller's security for his debt. Any bad faith act for such purpose would empower the seller to repossess the car. Ordinarily that would be a question for the jury. But where, as in this case, a situation is presented as to which reasonable minds could not reach different conclusions, it then becomes a question of law for the courts.
"In 13 Corpus Juris, 540-541, it is said:
"`The words of a contract will be given a reasonable construction, where that is possible, rather than an unreasonable one, and the court will likewise endeavor to give a construction most equitable to the parties, and which will not give one of them an unfair or unreasonable advantage over the other. So that interpretation
which evolves the more reasonable and probable contract should be adopted and a construction leading to an absurd result should be avoided.'
"It would be both unreasonable and inequitable to hold that a party who has purchased an automobile for $1,000.00 and owes $100.00 thereon, cannot realize on his equity therein in a manner that works no detriment or prejudice to the seller. In this case the buyer, desiring to leave the state, made inquiry of Parnell as to the value of her equity in the car. Parnell, being informed as to the state of the title, communicated with the seller for the purpose of ascertaining the balance of the unpaid purchase money, and obtaining the information, reported to defendant that she had no equity in the car. Suppose, on the other hand, Parnell had reported that he would pay the debt and give defendant $50, and such an agreement had been made and executed, could it be said that the buyer was actuated by bad faith in the transaction, or that she purposed to impair or endanger the seller's security? We think not. The situation would be different where a buyer was clandestinely, or under suspicious circumstances, endeavoring to dispose of such property without disclosing the existence of outstanding right and title notes and the true facts regarding the title. Another well recognized rule of construction is that where a contract is susceptible of two constructions, one of which will work a forfeiture and the other will not, that construction should be adopted which will prevent the forfeiture and preserve the rights of the parties. The testimony of Whitaker does not alter the situation, and it appears, furthermore, that the incident as to which he testified had nothing to do with the institution of this suit.
"In the circuit court it was contended that under the contract plaintiff had a right to repossess the car because it deemed its debt insecure. This question was not passed upon by the Court of Appeals. Plaintiff has filed no petition for certiorari, hence we are without jurisdiction to determine this question.
"We conclude, therefore, that under the facts of this case the plaintiff was not justified in bringing this suit and selling the car, and in so doing it was guilty of conversion, entitling defendant, under the statute, to a judgment for the value of the car, with interest and damages for its detention. We hold further that the plaintiff cannot set off its debt against the judgment for the value of the car. This is a possessory action in which a money judgment takes the place of the property where it has been disposed of. Murray v. Motor Sales Corporation, 160 Tenn. 140, 22 S.W.(2d) 227, 23 S.W.(2d) 913, was not a replevin suit and is not in point for that reason. If the defendant is insolvent and does not consent to a set-off, plaintiff may obtain such relief by a bill in equity. Howe Sewing Machine Co. v. Zachery, 2 Cooper's Chancery Reports, 478.
"We concur with the Court of Appeals in its finding that there is no evidence in the record as to the value of the car and the damages for its detention, and for the purpose of ascertaining these sums the case will be remanded to the circuit court.
"The Court of Appeals was in error in holding that a sale of the car under the conditional sales statute, pending the disposition of a replevin suit for its possession, constitutes a conversion. Model Garage Co. v. Sanders, 165 Tenn. 168, 54 S.W. (2d) 939.
"We concur with the Court of Appeals in holding that defendant is not entitled to recover the amount of $298.12, paid on the car, as provided in the conditional sales statute. That statute provides for such recovery where, upon repossession of the car because of the consideration remaining unpaid at maturity, the seller fails to advertise and sell in compliance with the statute. In the instant case the car was not...
