Studebaker Bros. Co. of Utah v. Witcher

• Decision Date: 01 August 1921
• Docket Number: 2400.
• Citation: 199 P. 477,44 Nev. 468
• Parties: STUDEBAKER BROS. CO. OF UTAH v. WITCHER ET AL.
• Court: Nevada Supreme Court

199 P. 477

44 Nev. 468

STUDEBAKER BROS. CO. OF UTAH v. WITCHER ET AL.

No. 2400.

Supreme Court of Nevada

August 1, 1921

Appeal from District Court, White Pine County; C.J. McFadden, Judge.

Replevin by the Studebaker Bros. Company of Utah against A. B Witcher, A. Jurich, and others. Judgment for the plaintiff and defendants Jurich and others appeal. Affirmed.

Anthony Jurich, of Ely, for appellants.

Chandler & Quayle, of Ely, for respondent.

COLEMAN J.

This is an appeal by defendants Jurich, McDonald, and Smithson from an order denying a new trial and from a judgment against them.

The record is the same as that in the case of Studebaker Bros. Co. of Utah v. Witcher et al. (No. 2399) 44 Nev 442, 195 P. 334, and the points urged on that appeal are with one other, urged on this appeal. For a detailed statement of the facts we refer to that case. However, it may not be out of place to give herein a skeleton outline of the facts.

On April 3, 1917, one Flamm, a resident of Salt Lake City, entered into a contract with respondent for the purchase of an automobile, agreeing to pay therefor a fixed sum, in installments. It was agreed that title to the car should remain in respondent until full payment of the purchase price, and that the car should not be removed from the state. Prior to full payment being made, Flamm took the car out of the state of Utah and into the state of Nevada. After arriving in Nevada with the car, Flamm was sued and the car attached. In due course of time a judgment was rendered against him, and the car sold to satisfy the judgment; defendant Witcher becoming the purchaser thereof.

Respondent brought this action of replevin to recover possession of the car, claiming ownership thereof. All of the defendants resisted the action, upon the theory that the contract between plaintiff and Flamm was a mere chattel mortgage, and that, having no notice thereof, Witcher was an innocent purchaser for value, and that he and those claiming through him should be protected. We decided adversely to this contention in the Witcher Case, supra, and that decision is binding upon this appeal. We adhere to all that was said therein.

We deem it proper to consider only two questions, the first of which is that plaintiff cannot prevail, since no demand was made for possession of the car before the action was brought. The contract in question between respondent and Flamm being merely a conditional sale, as held in the Witcher Case, supra, the defendants could not acquire any rights through Flamm superior to the respondent company, and demand in an action of this kind is not always necessary for every purpose; and, even though the defendants came into possession of the property innocently, where the right of possession was in respondent, appellants were entitled to have a demand made only for the purpose of affording them an opportunity to deliver the property without being subjected to court costs in connection therewith.

It is apparent from the record that a demand would have been fruitless. The defendants contested the action in the trial court upon the merits, and, that court having decided adversely to them, they have appealed to this court, where they insist that the judgment should be reviewed upon the merits, as well as for the technical reason that there was no demand prior to the bringing of the action. The law does not require vain or fruitless things of any one, nor will it tolerate another shielding himself by insisting upon a right which his conduct shows he would not have availed himself of had an opportunity been offered. The rule which we have enunciated is not only sustained by reasoning, but is sanctioned by the great weight of authority. 23 R. C. L. 888; 34 Cyc. 1410. The rule which we have stated is analogous to that declared by this and other courts--that a tender of money is not necessary when such a tender will avail nothing. Irvine v. Hawkins, 20 Nev. 384, 387, 22 P. 240. In Wertz v. Barnard, 32 Okl. 426, 122 P. 649, it is said:

" 'If no demand is made, and the original possession of the defendant be lawful, and he tenders the property to the plaintiff, and upon its delivery by proper answer or plea discharges the action, costs should be taxed against the plaintiff. If the defendant does not pursue this course, and contests the action, the writ will be sufficient demand, and defending the suit a refusal'--citing Chipman v. McDonald, 9 Kan. App. 882, 57 P. 252; Dearing v. Ford, 13 Smedes & M. (Miss.) 274; 24 Amer. & Eng. Ency. L. (2d Ed.) 510; footnotes 4 and 6, Shinn on Replevin, § 316; Cobbey on Replevin, § 450."

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