Jeffries v. Pankow , 112 Or. 439 ( 1924 )

BURNETT, J.

The defendant is a dealer in automobiles. He agreed to sell to the plaintiff an automobile under a conditional sales contract which contained the following provisions:

“The said property and the whole thereof shall remain the property of said seller and title to said property shall not vest in the buyer until the unpaid balance of the purchase price and any judgment or decree rendered thereon is wholly paid, together with taxes, assessments, insurance, costs and expenses of litigation as above mentioned, and in case the buyer makes default of payment of said amounts * * the buyer shall on demand deliver the property to the seller or his assigns in as good condition as when received, reasonable use and wear excepted, the said seller or Ms agent or assigns shall have the right, without notice or demand, to take immediate possession of said property * * all money paid on the purchase price thereof shall at the option of the seller belong to the seller or his assigns as liquidated damages for non-fulfillment of this contract by the buyer and for loss in value of said property and for the use and rental thereof wMle being in the possession of the buyer and any claim or equity of the buyer in said property shall utterly cease and determine without reclamation or compensation”;

With this contract, which is admitted by both parties, the defendant delivered to the plaintiff the automobile therein described. Afterwards, the plaintiff being unable to make payment of the installments due, the defendant retook the property into his own possession. Complaining now, the plaintiff charges that the redelivery of the property to the defendant was on the agreement that the latter would take it, try to sell the same, obtain the best available price, and that from the proceeds of the sale, plaintiff should receive all that was obtained over and above $1,100 then still owing to the defendant on the purchase price.

The essence of the plaintiff’s grievance is contained in this allegation of the complaint:

“That defendant without selling said car except as hereinafter stated, on or about the 20th day of July, 1920, willfully appropriated and converted said property to defendant’s own use, and has ever since said date used said property as his own property, and plaintiff waives any tort committed by defendant in said conversion and appropriation of said property, and elects to charge defendant with the reasonable value of said property, less the balance owing on the purchase price thereof by plaintiff, as for an implied purchase by defendant of plaintiff’s interests therein.”

The answer set np the contract in full, the same being in writing, attaching a copy thereof as Exhibit “A” and as stated, the plaintiff admits that this was the contract under which the parties operated. Other issues were formed in the pleadings in the nature of res judicata and estoppel based upon litigation for the collection of a note given as part of the purchase price but it is not necessary to consider those questions.

Under the contract, the property remained that of the defendant seller. It was admitted that the buyer made default in his payment due on the contract. Under those conditions he expressly stipulated that upon demand, he would deliver the property to the seller and that the latter should have the right, without notice or demand, to take immediate possession of the same. Having agreed to do this, it formed no consideration for thé attempted contract set up in the complaint. The plaintiff has no right under his allegation set out in the complaint “to charge defendant with the reasonable value of said property.”

At the trial, the plaintiff gave evidence about what occurred when the defendant called on him to surrender the possession of the car and what was said about his receiving the surplus remaining after satisfying the original contract price out of the proceeds of any sale the defendant might thereafter make of the car. Having rested, the defendant moved for a nonsuit on the ground, among others, that the complaint does not state facts sufficient to constitute a cause of action for the reason that there was no allegation of any consideration supporting the alleged agreement. The motion was denied and this is the principal ground of the defendant’s appeal from the ensuing judgment. That conditional sales contracts are valid and that the property in such cases remains in the seller until the purchase price is fully paid is settled by Singer Mfg. Co. v. Graham, 8 Or. 17 (34 Am. Rep. 572); Landigan v. Mayer, 32 Or. 245 (51 Pac. 649, 67 Am. St. Rep. 521); Schneider v. Lee, 33 Or. 578 (17 Pac. 269); Herring-Marvin Co. v. Smith, 43 Or. 315 (72 Pac. 704, 73 Pac. 340); McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33); Thienes v. Francis, 69 Or. 165 (138 Pac. 490); Francis v. Bohart, 76 Or. 1 (143 Pac. 920, 147 Pac. 755, L. R. A. 1916A, 922); International Harvester Co. v. Bauer, 82 Or. 686 (162 Pac. 856), Pelton Water Wheel Co. v. Oregon Iron Co., 87 Or. 248 (170 Pac. 317); Miles v. Sabin, 90 Or. 129 (175 Pac. 863); First National Bank of Sheridan v. Yocom, 96 Or. 438 (189 Pac. 220); Endicott v. Digerness, 103 Or. 555 (205 Pac. 975).

Judgment reversed -with directions on rehearing, September 30, 1924. For appellant there was a brief over the name of Mr. Webster Holmes, with an oral argument by Mr. C. W. Barrick.

Clearly, the property was that of the defendant at all times named in the pleadings. The allegation that he converted his own property to his own use is sham. The doing by the plaintiff of what he already had agreed to do in surrendering to the defendant the latter’s own property formed no consideration for the agreement he attempts to allege in his complaint. The complaint was demurrable in not averring a consideration sufficient to support the alleged agreement. The judgment of the Circuit Court is reversed, with directions to enter a judgment of nonsuit on the motion of the defendant.

Reversed With Directions. Costs.