Union Machinery & Supply Co. v. Thompson

• Decision Date: 29 August 1917
• Docket Number: 14077.
• Citation: 167 P. 95,98 Wash. 119
• Court: Washington Supreme Court
• Parties: UNION MACHINERY & SUPPLY CO. v. THOMPSON.

167 P. 95

98 Wash. 119

UNION MACHINERY & SUPPLY CO. v. THOMPSON.

No. 14077.

Supreme Court of Washington

August 29, 1917

Department 1. Appeal from Superior Court, Kitsap County; Walter M French, Judge.

Action by the Union Machinery & Supply Company against Paul L Thompson. From a judgment of dismissal, plaintiff appeals. Reversed.

Chadwick J., dissenting.

Robert A. Eaton, of Seattle, for appellant.

Philip Tworoger, of Seattle, for respondent.

MAIN J.

The purpose of this action was to recover possession of two donkey engines, which had been sold by the plaintiff to the defendant upon a conditional sale contract. The complaint is in the usual form in such cases, with a copy of the contract attached and by appropriate reference made a part thereof. To this complaint a demurrer was interposed and sustained. The plaintiff refused to plead further, and elected to stand upon its complaint. Thereupon a judgment was entered, dismissing the action, from which this appeal is prosecuted.

The facts as alleged in the complaint will be here stated only to the extent that it seems necessary in order to present the controlling question in the case. On the 11th day of September, 1914, the appellant sold to the respondent two donkey engines, the purchase price of which was $900, of which $200 was paid in cash. The balance of the purchase price was to be paid in four installments, the last of which became due five months after the sale took place. The contract of sale was made out upon a printed form which the appellant apparently was accustomed to use in its business and was signed by both parties thereto. The first paragraph of this contract, after a formal recital as to the parties thereto, is as follows:

'That in consideration of the payment of the sum of $900, the premises, the warranties below stated, and subject to the terms and conditions printed on the back hereof which are hereby agreed to and performance thereof warranted by the vendee, the vendor hereby agrees to deliver and sell to the vendee, and the vendee hereby agrees to take from and purchase of the vendor, that certain personal property hereinafter described. That the sum of $200 thereof shall be paid in cash. * * *'

It should be observed that by this paragraph in the contract the sale was 'subject to the terms and conditions printed on the back hereof which are hereby agreed to and performance thereof warranted by the vendee.' On the back of the contract there were certain printed conditions in only slightly smaller type than that in which the first portion of the contract is printed. These conditions are under a heading in rather prominent type, as follows:

'Terms and Conditions Referred to on the Face of This Contract.'

Paragraph 4 of these conditions is as follows:

'It is agreed that the vendor may apply money received from the vendee, either upon this contract, any other conditional sale contract, or open account, held by the vendor, as its president or secretary may elect. The right of the vendee to make special application of payments being hereby expressly waived.'

[98 Wash. 121] Paragraph 7 of the conditions is as follows:

'The legal and equitable title to the property shall at all times remain in the vendor until the purchase price thereof as evidenced by the notes described herein, and any renewals thereof, or judgments thereon (or as evidenced by this contract in case no notes were given), and all other sums due, shall have been paid in full, and each and all of the warranties, covenants and stipulations are complied with. That such payment and compliance shall be a condition precedent to the vesting of title, either legal or equitable, in the vendee.'

By paragraph 7 the payment of the purchase price of the engines, 'and all other sums due,' was made a condition precedent to the vesting of the title in the vendee.

On May 6, 1916, there was a balance due of $100 on the purchase price of the engines, and, in addition thereto, the respondent was indebted to the appellant in the sum of $24.90 on an open account. A few days subsequent to the date last mentioned, the respondent tendered to the appellant $100 and, at the same time, demanded a satisfaction of the conditional sale contract, which was refused on the ground that there was still a balance of $24.90 due on the open account. The respondent refused to pay the latter sum, and took the $100 away with him. On August 23, 1916, the appellant declared a forfeiture of the contract and demanded the return of the two engines, and, on September 11, 1916, the...