Shipman v. Kloppenburg

• Court: Idaho Supreme Court
• Writing for the Court: TAYLOR
• Citation: Shipman v. Kloppenburg, 240 P.2d 1151, 72 Idaho 321 (Idaho 1952)
• Decision Date: 12 February 1952
• Docket Number: No. 7754,7754
• Parties: SHIPMAN et al. v. KLOPPENBURG et al.

Page 1151

240 P.2d 1151

72 Idaho 321

SHIPMAN et al. v. KLOPPENBURG et al.

No. 7754.

Supreme Court of Idaho.

Feb. 12, 1952.

Ray D. Agee and Arthur E. Babbel, Twin Falls, for appellants.

Maurice H. Greene, Boise, and Frank L. Stephan, Twin Falls, for respondents.

TAYLOR, Justice.

On October 1, 1945, W. G. Shipman and C. R. Shipman, doing business as Shipman Bros. Transfer Co., as sellers, entered into a written contract with L. W. Kloppenburg and Abby H. Kloppenburg, husband and wife, as buyers, for the sale of a trucking business and certain equipment. The pertinent provisions of the contract are as follows:

'That for and in consideration of $15,000. in hand paid by parties of the second part Parties of the first part agree to sell that part of their business known as their Long Haul Trucking business operating under I.C.C. Permits No. MC-29791 and MC 29791 Sub. 1 to parties of the second part for the sum of $30,000. Above price to include One Kenworth Diesel truck Motor No. HB 6 37285 together with one Reliance Refer Semi. Also included in above sale shall be numerous parts and repairs for truck and semi.

'The said buyer, in consideration of the premises and the covenants and agreements herein contained, agrees to pay to the said seller the total sum of thirty thousand and no/100 dollars, lawful money of the United States of America, as the purchase price of said Long haul trucking operations as follows: fifteen thousand and no/100 dollars cash, on signing this agreement, receipt whereof is hereby acknowledged, and the further sum of $200. each and every month thereafter for the first year and 300.00 next 6 months, 600.00 each and every month thereafter until the balance of $15,000. has been fully paid. The monthly payments as above shall pay the payments on the principal and include the payments of interest. Monthly payments may be increased at option of buyer.

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'And said seller, on receiving such payment at the time and in the manner above mentioned, agrees to execute and deliver to said buyer or his assigns transfer of above operating rights, as soon as approved by Interstate Commerce Commission,

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'Time is the essence of this contract, and in case said buyer shall refuse or neglect to pay said installments of purchase promptly as agreed herein, it shall be optional with the said seller to declare this contract forfeited, and upon the making of such declaration all right of the said buyer to complete said purchase or to continue in possession of said truck and Operating rights shall immediately terminate, and said buyer shall forfeit all moneys paid to the said seller as purchase price, unless said seller shall otherwise elect.

'The said buyer shall be entitled to the possession of said truck & operating rights so long as the terms of this agreement are complied with, but a failure to comply with the same shall, at the option of the said seller, terminate the right of possession, and the said buyer shall surrender the possession of said truck and operating rights, if any, to the said seller, and any money paid by the said buyer by virtue of this agreement shall be retained and shall remain the property of said seller, as liquidated damages, and said buyer shall thenceforth be regarded as a tenant holding over after the expiration of his term and shall be liable to dispossession under the law relative to forcible entry and detainer.'

At that time, apparently as a part of the transaction, the parties executed an application to the Interstate Commerce Commission for a transfer of the two operating permits from the sellers to the buyers. (The application bears date October 10th and is acknowledged under date of October 1, 1945). It appears from the record that the buyers did not have the money with which to make the down payment; that they had an application for a loan pending with the Fidelity National Bank of Twin Falls which had not been completed. So the closing of the deal was delayed. On October 27th, a payment of $3,000 was made. On December 11th a payment of $8,000 was made, and on the same day the sellers accepted the buyers' note for $3,500, due two years after date, as a payment on the $15,000 payable at the execution of the contract. Just how, or whether, the difference between the total of these three payments and the required $15,000 was paid, does not appear. But, evidently the sellers were sufficiently satisfied to proceed with the contract. The application for transfer was filed with the Interstate Commerce Commission December 3rd, and was granted and the transfer ordered by the commission under date of April 25, 1946.

The buyers became delinquent in their payments in late 1947, which delinquency continued to the time of judgment. Demand was made for payment of the delinquency on August 24, 1948, and on September 15, 1948, the demand not having been complied with, the sellers declared a forfeiture of the contract and demanded reassignment to them of the permits. In this notice of forfeiture and demand for reassignment the buyers were notified that if they did not comply an action would be commenced by the sellers to compel such reassignment.

This action was commenced on October 29, 1948. It is brought for the sole purpose of compelling the defendants, the buyers, to join with the plaintiffs in an application to the Interstate Commerce Commission for a transfer of the operating permits from the defendants to the plaintiffs. Neither the truck nor the trailer mentioned in the contract were demanded by or returned to the sellers. In their answer the defendants plead as a defense that they had paid on the contract $2,942.95 interest and $29,309.11 principal, leaving a balance due of $680.89 principal and $91.62 interest, which they tender.

Upon trial the issue litigated was the amount paid and the balance due on the contract. The court found 'That the defendants have failed to make all of the payments provided in said contract of sale and that there is now due and unpaid from the defendants to the plaintiffs under said contract of sale the sum of $16,258.55 principal, together with interest thereon from the 17th day of January, 1948, until paid at the rate of seven percent per annum, less the sum of $300.00 paid by the defendants to the plaintiffs in three installments of $100.00 each, one on April 10, 1948, one on May 12, 1948 and one on July 12, 1948; * * * that a retransfer of said operating rights from defendants to plaintiffs must be approved by the Interstate Commerce Commission under the Interstate Commerce Act, as amended [49 U.S.C.A. § 1 et seq.]; that in order to carry out the terms of said contract relating to retransfer of said operating rights, it is necessary that plaintiffs and defendants jointly execute an application on forms provided by the Interstate Commerce Commission; that plaintiffs have submitted to the defendants an application for retransfer upon such forms, but that defendants have failed and refused to execute the same and will continue to so refuse unless compelled to do so by order of this Court.' By its conclusions the court held that the plaintiffs were entitled to a decree requiring the defendants to join with them in an application for transfer of the permits; 'That defendants by their inequitable conduct toward plaintiffs are not entitled to any equitable relief in this action relieving them from making the payments in said contract at the time and in the manner provided therein;' and that upon compliance with the decree the defendants are entitled to have the $3500 note surrendered to them for cancellation. Decree was entered accordingly on September 18, 1950.

After the trial defendants changed counsel. On the 28th of September their present counsel made a written tender and offer to pay to the plaintiffs 'the sum of $18,940.98 as the balance owing on the contract sued on in said action and in payment of said balance and in satisfaction of the judgment and decree.' On the same day they served and filed their application for a new trial on the alleged grounds of newly discovered evidence consisting of the tender and offer to pay, and that the court did not give or grant to the defendants an opportunity to pay the balance found due, but, instead forfeited property to the plaintiffs of a value exceeding $40,000. The application was accompanied by a supporting affidavit of one, O. D. Halvorson, in which he avers that the two operating permits are of a reasonable market value in excess of $40,000.

This appeal is from the judgment and the order denying the application for a new trial.

The appellants assign a want of proof to sustain the court in holding that the respondents are entitled to have the permits retransferred to them. Their first contention in this respect is that the contract does not provide for such retransfer. We think the provision in the contract that upon failure of the buyers to comply, their right of possession of the property is terminated and the 'buyer shall surrender the possession of said truck and operating rights * * * to the seller', is sufficient for that purpose. An agreement by the buyers to surrender possession of the property would clearly imply an agreement to execute any instrument necessary to effect such surrender. Long v. Owen, 21 Idaho 243, 121 P. 99; Fidelity State Bank v. North Fork Highway Dist., 35 Idaho 797 at page 809, 209 P. 449, 31 A.L.R. 781. Although the court has no power to control any action the commission may take upon the application when made, it can require performance of their contract by the defendants to the extent that they are able to perform, by requiring them to join in the application for retransfer. Brubaker v. D'Orazi, 120 Mont. 22, 179 P.2d 538; Royal Blue Coaches v. Delaware River Coach Lines, 140 N.J.Eq. 19, 52 A. 763; Costello v. Acco Transport Co., 33 Tenn.App. 411, 232 S.W.2d 297; Lennon v. Habit, 216...