Sellai v. Lemmon

• Court: Nevada Supreme Court
• Writing for the Court: DUCKER, Justice.
• Citation: Sellai v. Lemmon, 62 Nev. 330, 151 P.2d 95 (Nev. 1944)
• Decision Date: 17 August 1944
• Docket Number: 3407.
• Parties: SELLAI v. LEMMON.

151 P.2d 95

62 Nev. 330

SELLAI v. LEMMON.

No. 3407.

Supreme Court of Nevada

August 17, 1944

Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.

Action by Alfred F. Lemmon, doing business under the firm name and style of Lemmon & Travers, against Julia Sellai, as administratrix of the estate of G. Sellai, also known as John Sellai, deceased, on a conditional sales contract. From a judgment for plaintiff and from an order denying motion for new trial, the defendant appeals.

Affirmed.

W. M. Kearney, of Reno, for appellant.

Thatcher & Woodburn, of Reno, for respondent.

DUCKER Justice.

Action on a conditional sales contract. Judgment for plaintiff for the balance due thereon. Appeal therefrom and from the order denying the motion for a new trial. Reference to the parties will be continued as they were designated in the court below.

The amended complaint shows among the facts alleged, as follows On the 24th day of July, 1941, G. Sellai, also known as "John Sellai", died intestate and on the 11th day of August, 1941, letters of administration were issued to the defendant by the second judicial district court, who duly qualified and entered upon her duties as such administratrix that on January 30, 1942, after leave of said court duly obtained, plaintiff filed a claim for payment of the contract hereinafter described, which was rejected by defendant and notice thereof given to plaintiff; that on or about the 22d day of May 1941, plaintiff and defendant's intestate made and entered into a written contract of conditional sale, copy of which was attached to and made a part of the amended complaint and marked Exhibit "A", by the terms of which plaintiff sold to defendant's intestate one 4DD Col-Temp Bottle File at the total price of $1,138.50 payable in monthly installments of $47.44 beginning on the 1st day of July, 1941, and payable on the 1st day of each month thereafter until the whole of said sum should be paid; that in accordance with the terms thereof plaintiff delivered to defendant's intestate said 4DD Col-Temp Bottle File and the same was installed in the premises of defendant's intestate known as the "Reno Bar" in Reno; that defendant's intestate and defendant made the monthly payments provided for in said contract in installments of $47.44 on July 1, 1941 and on the first day of each month thereafter up to and including December 1, 1941, and informed plaintiff that no further payments would be made upon said contract, and since then none has been made; that title to said 4DD Col-Temp Bottle File was, under the terms of said contract, Exhibit "A" attached hereto, retained by the seller until all sums due under the contract were fully paid, and the seller was given the right under the contract, upon default in any payments on the part of the buyer, to declare the full amount due upon said contract immediately due and payable, and to repossess the said 4DD Col-Temp Bottle File and sell the same at public or private sale and apply the proceeds to the payment of the indebtedness; that in accordance therewith the plaintiff declared the whole of the balance of said contract price to be due and payable, and repossessed the said 4DD Col-Temp Bottle File, and sold the same at a private sale for $400 which sum plaintiff credited upon the balance remaining unpaid upon said contract, to-wit, the sum of $853.88, leaving a balance due, owing and unpaid from defendant's intestate to plaintiff, in the sum of $453.88.

It shows that the contract provides that the purchaser agrees to pay seller a reasonable attorney's fee incurred by seller in the repossession of said property, and that it has been necessary for plaintiff to employ attorneys, and that the services of such are of the reasonable value of $250. It further shows that on May 22, 1941, said contract was assigned by plaintiff to First National Bank of Nevada, and prior to the institution of this action, was reassigned by said bank to plaintiff.

The amended complaint prayed for judgment against defendant in the sum of $453.88, attorney's fees in the sum of $250, for costs of suit, all to be payable out of said estate in the due course of administration. A demurrer to the amended complaint on the ground that it does not state facts sufficient to constitute a cause of action against defendant, was overruled.

Defendant's answer and amendment to her answer consists of admissions and denials. The execution of the conditional sales contract by defendant's intestate was denied, and it was denied that any installment payments were made by either.

As a separate defense defendant alleged that after Sellai's death she simply rented the bottle file, but had surrendered possession to the plaintiff under an agreement that no claim would be filed for the deficiency; that plaintiff entered into an agreement with defendant, whereby, in consideration of the surrender of all rights in and to and possession of said Col-Temp Bottle File to plaintiff, and a waiver of any claim of defendant for an equity therein and permission of defendant to allow said Col-Temp Bottle File to remain in the said saloon premises until the purchaser took possession plaintiff would accept such surrender and possession in satisfaction of any and all claims of plaintiff against said defendant as administratrix; and thereupon the possession of said Col-Temp Bottle File was surrendered to plaintiff. It was further alleged in separate defense that the said Col-Temp Bottle File when surrendered, could have been sold by defendant to the purchaser of the saloon business of the estate for the sum of $400, and that the defendant had an offer of $600 for the same from the purchaser, which plaintiff refused to accept, and that the reasonable market value of said Bottle File at the time of said surrender was greater than the balance due on said alleged contract of sale. These allegations of said separate defense were denied in the reply. The trial court found in conformity with the allegations of the amended complaint...