Smith v. Harrington

• Decision Date: 09 July 1925
• Citation: 41 Idaho 155,238 P. 530
• Parties: W. I. SMITH, Appellant, v. MIKE HARRINGTON, Respondent
• Court: Idaho Supreme Court

238 P. 530

41 Idaho 155

W. I. SMITH, Appellant, v. MIKE HARRINGTON, Respondent

Supreme Court of Idaho

July 9, 1925

CONDITIONAL SALE CONTRACT-REMEDIES FOR BREACH.

1. An assignment of error that "the evidence is insufficient to warrant the findings and decision" will not be considered when there is no specification of the particulars in which the alleged insufficiency consists.

2. Under a conditional sale contract, which provides that, on default of the buyer, the seller may retake possession, sell the property, credit the buyer with the proceeds and hold him for the balance, the seller is entitled to judgment for the balance of the agreed price remaining due, after reselling the property and crediting the buyer with the proceeds thereof.

3. In a conditional sale contract where title to the property is retained by the seller, the possession of the property, the right to its use and to acquire title thereto is a sufficient consideration to support the promise of a buyer to pay the agreed price, or any deficiency thereof remaining upon the retaking and resale of the property, according to the contract, because of the default of the buyer.

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. O. R. Baum, Judge.

Action on conditional sale contract. Judgment for defendant. Reversed.

Judgment reversed. Costs to appellant.

C. E Melvin, for Appellant.

Where there is a provision authorizing the seller in certain circumstances to retake the property, dispose of it and hold the buyer for any deficiency, after applying the proceeds of the property upon the purchase price, the great majority of the cases considering the matter sustain the validity of and enforce provisions of this character. (Harkness v Russell & Co., 118 U.S. 663, 7 S.Ct. 51, 30 L.Ed. 285; Adams v. Anthony, 178 Cal. 158, 172 P. 593; Continental Guaranty Corp. v. People's Bus Line (Del.), 117 A. 275; Pannel v. McGarity, 27 Ga.App. 71, 107 S.E. 352; Herbert v. Rhodes-Burford Furniture Co., 106 Ill.App. 583; Schneider v Daniel, 191 Ind. 59, 131 N.E. 816; Christie v. Scott, 77 Kan. 257, 94 P. 214; Bedard v. C. S. Ransom, Inc., 241 Mass. 74, 134 N.E. 392, 25 A. L. R. 1488; Van Den Bosch v. Bouwman, 138 Mich. 624, 110 Am. St. 336, 101 N.W. 832; Atkinson v. Japink, 186 Mich. 335, 152 N.W. 1079; Adler v. Weis & F. Co., 66 Misc. 20, 119 N.Y.S. 634; affirmed, 138 A.D. 918, 123 N.Y.S. 1104; McCormick Harvesting Machine Co. v. Koch, 8 Okla. 374, 58 P. 626; Internatl. Harvester Co. v. Bauer, 82 Ore. 686, 162 P. 856; First Nat. Bank of Sheridan v. Yocum, 96 Ore. 438, 189 P. 220; Rudolph Wurlitzer Co. v. Mandarin Co., 178 Wis. 185, 188 N.W. 639; Studebaker Bros. Co. v. Mau, 13 Wyo. 358, 110 Am. St. 1001, 80 P. 151; note, 25 A. L. R. 1490.)

R. J. Dygert and A. A. Mattson, for Respondent.

In case of default of the purchaser in a conditional sales contract the seller may bring an action for the purchase price or he may retake the property, but he cannot do both. (Utah Implement Vehicle Co. v. Kesler, 36 Idaho 476, 211 P. 1079; Pease v. Teller Corp., Ltd., 22 Idaho 807, 128 P. 981; Peasley v. Noble, 17 Idaho 686, 134 Am. St. 270, 107 P. 402; Mark Means Transfer Co. v. McKinzie, 9 Idaho 165, 73 P. 135, 27 L. R. A., N. S., 216.)

Where by the particular conditions of the contract between the parties it is agreed that the balance due after the retaking of the property, upon the note, shall be the measure of damages for the breach of the contract by the vendee and for the use and damage to the property, this court has held the rule not to apply. (Miller-Cahoon Co. v. Lawrence, 31 Idaho 704, 176 P. 774.)

WM. E. LEE, J. Budge, Givens and Taylor, JJ., concur.

OPINION

WM. E. LEE, J.

--The respondent purchased a binder and truck from appellant, under two certain conditional sale notes or contracts, in each of which he promised to pay the sum of $ 150 and interest. The contracts contained the following provisions:

"I agree that the title thereto . . . . shall remain the property of W. I. Smith . . . . until this and all other notes given for the purchase price shall have been paid in money. If I fail to pay this note when due . . . . the holder of this note may seize and sell the same at public or private sale with or without notice, pay all expenses thereby incurred, and apply the said proceeds upon this note and to the notes given for the purchase price thereof, whether due or not due, and retain all payments before made as rent for the use of said property. I especially agree to pay any balance on this note remaining unpaid after such property is sold. . . ."

The respondent failed to make the stipulated payments, and appellant recovered possession of the property in an action of claim and delivery. The property was sold for thirty dollars, in which sum respondent was given credit. This action was instituted to recover the balance claimed to be due. The court denied any relief to appellant and ordered judgment for respondent for his costs.

One of the specifications of error is that the "facts and evidence submitted are insufficient to warrant the findings and decision of the court." This specification is clearly insufficient. An assignment that the evidence is insufficient to warrant the findings and decision will not be considered when there is no specification of the particulars in which the alleged insufficiency consists. (Hill v. Porter, 38 Idaho 574, 223 P. 538, and cases there cited; Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; Intermountain etc. Co. v. Norris, 39 Idaho 685, 229 P. 745.)

The important question in the case is whether, under this conditional sale contract, on the default of the buyer, the seller, having retaken and resold the property, was entitled to a judgment for the deficiency. A conditional sale contract, which provides that, on default of the buyer, the seller may retake possession, sell the property, credit the buyer with the proceeds and hold him for the balance, is valid and enforceable. Such a contract was within the rights of the parties and the remedies provided for its enforcement are neither contrary to good morals nor against public policy. The recovery of possession of the property by means of the action in claim and delivery, under the terms of the contract, did not constitute a rescission. The seller merely pursued the remedy provided by the parties themselves, and sold the property for the account of the buyer to determine the amount remaining due. (Adams v. Anthony, 178 Cal. 158, 172 P. 593; First Nat. Bank v. Yocom, 96 Ore. 438, 189 P. 220; International Harvester Co. v. Bauer, 82 Ore. 686, 162 P. 856; Continental Guarantee Corp. v. People's Bus Line (Del.), 31 Del. 595, 117 A. 275; McCormick...