Smith v. Greenfield State Bank

• Court: California Court of Appeals
• Writing for the Court: RALPH M. BROWN; CONLEY, P. J., and STONE
• Citation: Smith v. Greenfield State Bank, 222 Cal.App.2d 869, 35 Cal.Rptr. 579 (Cal. App. 1963)
• Decision Date: 04 December 1963
• Parties: Maude J. SMITH, as Administratrix etc., Plaintiff & Respondent, v. GREENFIELD STATE BANK, Defendant & Appellant. Civ. 260.

Page 579

35 Cal.Rptr. 579

222 Cal.App.2d 869

Maude J. SMITH, as Administratrix etc., Plaintiff & Respondent, v. GREENFIELD STATE BANK, Defendant & Appellant.

Civ. 260.

District Court of Appeal, Fifth District, California.

Dec. 4, 1963.

Rehearing Denied Dec. 30, 1963.

Mack, Bianco, King, Eyherabide, Means & Cooney; and Henry C. Mack, Jr., Bakersfield, for appellant.

Edwin W. Wilson, Bakersfield, for respondent.

RALPH M. BROWN, Justice.

Appellant bank appeals from a judgment in favor of respondent for $1,200 for damages for the conversion of a harvester, said action being brought by the respondent administratrix of the estate of Guy O. Smith, deceased.

The decedent died May 14, 1960. In September 1957 the decedent had purchased a harvester on a conditional sales contract to which the signature of his son, Raymond O. Smith, was also added, and which was subsequently assigned to the appellant. On January 5, 1959, the decedent executed a revision agreement altering the payment under the contract and again on January 25, 1960, made a new revision agreement with the appellant changing the payment amounts and dates, with payments of $100 being due in July, August, September, October and November of 1960, and the entire balance due on December 17, 1960. Meanwhile the decedent died (on May 14, 1960), and respondent was appointed administratrix of his estate. She made none of the payments, and on October 17, 1960, appellant executed a creditor's claim for the full balance due on the purchase price of the harvester which was $2,340.66. While a copy of the conditional sales contract was attached to the creditor's claim, neither of the revision agreements was attached to the claim. On October 19, 1960, the harvester was repossessed by the appellant; on October 21, 1960, appellant's claim was presented to the administratrix which was allowed by her on November 5th and approved by the court on January 16, 1961.

On February 6, 1961, respondent administratrix brought an action in conversion alleging that the estate had title to the harvester. The appellant filed a general denial alleging no special defenses, and no mention was made of Raymond O. Smith's being co-signer of the original conditional sales contract. The trial court found that 'On or about the 17th day of January, 1961, and for a long time prior thereto, the aforementioned estate of Guy O. Smith, Deceased, was the owner of' the harvester. The question whether Raymond O. Smith ever in fact owned any interest in the harvester, and if so, when or under what circumstances he lost such interest was not raised by any party or by Raymond O. Smith himself, who was a witness.

After a trial, judgment was entered in favor of the respondent in the sum of $1,200, from which the appellant appeals.

The conditional sales contract provided that in the event of the failure to comply with the terms, payments or conditions of the contract the seller could, with or without notice, (1) take possession of said property, purchaser to have no further right, title or interest in and to the property; or (2) take possession of the property, sell said property, and demand the deficiency; or (3) without taking possession of the property, sue for the entire balance.

It is respondent's contention that the contract provided for three inconsistent remedies and by filing the creditor's claim, there having been a default on the first payment of installments on the revision agreement (it being admitted that no payments had been made), title passed from the appellant to the respondent; that by taking possession the harvester was converted by the appellant; and that it is immaterial whether the retaking of possession was before or after the filing of the creditor's claim.

It is agreed that the doctrine of election of remedies is applied to a situation involving a conditional sales contract in order to keep the seller from keeping both the property and the price while the defaulting buyer suffers a forfeiture, and that this doctrine bars only inconsistent remedies, but where remedies are concurrent and consistent, a party may pursue one or all of them until satisfaction is had.

While a contingent claim may be filed under Probate Code section 705, the court said in Holt Manufacturing Co. v. Ewing, 109 Cal. 353, 356-357, 42 P. 435, 436:

'But the default having occurred, and the plaintiff having the right, at and before the time of the presentation of the claim, to pursue the remedy secured to it in the contract of retaking the property, there was clearly an election not to avail itself of this right, but of looking to the estate for the payment of the balance due upon the contract.'

In our case the creditor's claim was for the full balance due on the harvester because of the default in payment of the installments prior to the filing of the creditor's claim, and thus, the claim was not filed as a contingent claim. The matter is discussed in 20 California Jurisprudence Second, Executors and Administrators, section 564, page 793.

While in the Holt case, supra, the creditor's claim was filed and the creditor thereafter filed an action to recover possession of the property covered by a conditional sales contract, in the case before us the repossession took place two days before the claim was presented, and the court held that title had passed and the action could not be maintained.

In Martin Music Co. v. Robb, 115 Cal.App. 414, 1 P.2d 1000, the assignee of the music company had brought an action for the full contract balance without attempting to repossess the piano from the defendant. Meanwhile, the defendant filed a petition in bankruptcy, listing the claim. The assignee dismissed its action,...