Sparkman v. Miller-Cahoon Co.

• Decision Date: 10 October 1929
• Docket Number: 5264
• Citation: 48 Idaho 254,282 P. 273
• Parties: O. SPARKMAN, Sheriff of Fremont County, Idaho, et al., Respondents, v. MILLER-CAHOON COMPANY, a Corporation, and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant
• Court: Idaho Supreme Court

282 P. 273

48 Idaho 254

O. SPARKMAN, Sheriff of Fremont County, Idaho, et al., Respondents, v. MILLER-CAHOON COMPANY, a Corporation, and AMERICAN SURETY COMPANY OF NEW YORK, a Corporation, Appellant

No. 5264

Supreme Court of Idaho

October 10, 1929

APPEAL from the District Court of the Ninth Judicial District, for Fremont County. Hon. C. J. Taylor, Judge.

Action for damages for breach of condition of a bond for the prosecution of an action of claim and delivery. Judgment for plaintiffs. Reversed and remanded, with instructions.

Reversed and remanded with instructions. Costs to divided equally between appellant and respondents.

O. A Johannesen, for Appellant.

In a conditional sales contract, where title is reserved in the seller until payment is made by the purchaser, the sale can only be completed and title passed upon payment of the purchase price of said property. (C. S., sec. 5692; Kester v. Schuldt, 11 Idaho 663, 85 P. 974.)

The seller in a conditional sales contract does not waive his security by taking notes or security, personal or collateral. (McArthur Bros. Merc. Co. v. Hagihara, 22 Ariz. 100 13 A. L. R. 1038, 194 P. 336; Bierce v. Hutchins, 205 U.S. 340, 27 S.Ct. 524, 51 L.Ed. 828; Monitor Drill Co v. Mercer, 163 F. 943, 16 Ann. Cas. 214, 90 C. C. A. 303, 20 L. R. A., N. S., 1065.)

Immediately upon the attachment of goods held under the conditional sales contracts, the contracts between the seller and buyer were violated, and the seller had the right to immediately repossess the property, as provided under the contracts. (Barton v. Groselose, 11 Idaho 227, 81 P. 623; Peasley v. Noble, 17 Idaho 686, 107 P. 402.)

A. H. Wilkie, for Respondents.

Under a conditional sales contract, where the seller takes a mortgage on other property or other security for the purchaes price, such act is a waiver of the condition reserving title and is an election to consider the sale as absolute. (35 Cyc. 675; McCormick Harvesting Mach. Co. v. Lewis, 52 Kan. 358, 35 P. 12; Silver Bow M. & M. Co. v. Lowrey, 6 Mont. 288, 12 P. 652; Hinchman v. Point Defiance Ry. Co., 14 Wash. 349, 44 P. 867; C. Aultman & Co. v. Silha, 85 Wis. 359, 55 N.W. 711.)

T. BAILEY LEE, J. Budge, C. J., and Givens, Wm. E. Lee and Varian, JJ., concur.

OPINION

T. BAILEY LEE, J.

On December 29, 1921, plaintiff and respondent, Sparkman, as sheriff of Fremont county, at the instance of several creditors of the Hobart-Brown Co., attached certain goods and merchandise in said company's possession. The creditors having obtained judgments in the probate court some time in January following, the sheriff proceeded under the consequent executions to notice the property for sale. Whereupon, the Miller-Cahoon Co. which had theretofore without avail served upon the sheriff written demand for said property, setting up its ownership thereof, instituted a replevin action in the district court against the Hobart-Brown Co., and the sheriff aforesaid.

Under the bond furnished, the sheriff surrendered possession of the property to the plaintiff in replevin who immediately removed the same from Fremont county. Later, the defendant, Hobart-Brown Co., filed a confession of judgment in favor of the replevinor; and the sheriff filed his demurrer, later his answer. Notwithstanding his appearance and traverse of the complaint, the replevinor dismissed its suit as to him, and stood upon the judgment against the Hobart-Brown Co.

Claiming this failure to prosecute the action to be a breach of the bond, the sheriff demanded a return of the property, which demand having been refused, he instituted the immediate damage suit against the Miller-Cahoon Co. and its surety, the American Surety Co. of New York. Later the execution creditors were joined as parties plaintiff.

Defendant, Miller-Cahoon Co., went into the hands of a receiver and defaulted. Defendant surety company filed divers motions and demurrers, all of which were denied and overruled, and filed its answer setting up the receivership proceedings, the confession of judgment aforesaid, and its principal's title to the property in question. At the trial it offered to confess judgment for nominal damages in the sum of one dollar.

As the basis of title in its principal, the Surety Company plead two title retaining contracts entered into by Miller-Cahoon Co. as seller, and Hobart-Brown Co. as buyer, respectively on August 9, 1918, and September 24, 1919. The first contract by its own terms expired on September 1, 1919, the other continued throughout the year 1921 and was never recorded pursuant to the provisions of chap. 153 of the 1921 Session Laws. Trial was had by the court without a jury. Aside from certain articles admittedly consigned to Hobart-Brown by Miller-Cahoon, the court found that the remainder of the property had been sold upon open account during the years 1918-1921, inclusive, and that the title thereto having vested in the Hobart-Brown Co. such property was subject to the sheriff's process. He further found that the defendant had failed to identify what property had been sold under the particular contracts or what parts had been sold after chap. 153 took effect. Judgment was accordingly entered in favor of plaintiffs for the full sum demanded, to wit: $ 1177.40.

The Surety Company appealing, sets up a veritable host of errors legal incapacity of the sheriff to sue, nonjoinder, for failure to join the receiver as defendant, misjoinder of parties plaintiff, failure to levy under all of the respective executions, failure to plead that plaintiffs, foreign corporations, had complied with the statutory requirements as to doing business, and a deal more which merit no mention. It also complains insistently that plaintiff creditors wholly failed to show that their judgments were unsatisfied. It is unnecessary to cite authority for saying that, as obligee of the bond sued upon, the sheriff was a proper party plaintiff, that there was no misjoinder, that the Surety Company could have been sued alone, that the joining of its principal's receiver was none of its business, that having already attached, the sheriff was not required...