Berlin Machine Works v. Dehlbom Lumber Co.
186 P. 513
Idaho
1919
Check Treatment
MORGAN, C. J.

This cause has been heretofore considered by the court and a decision remanding it with direction to make additional findings and to еnter judgment in accordance therewith is reported in 29 Ida. 494, 160 Pae. 746. Pursuant to that direction the trial court found, in addition to the findings of fact thеretofore made, that respondent had, prior to March 1, 1910, paid $650 to appellant on the purchase price of the resaw, mentioned in our former opinion, and had, at the time of making the contract for the purchase thereof, executed dnd delivered to appellant three promissory notes; that appellant has never offered to repay the money, or any part thereof, nor to return the notes, or either of them, and that by the terms of the conditional sale contract, discussed in оur former opinion, it was its duty, on rescinding the same, to return the notes and repay the purchase ‍​‌‌​​​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌​‌‌​​‌‌​‍money, less the expense of returning the resaw to Beloit, Wisconsin, which expense the court found to be $200. ' As an additional conclusion of law the court found that resрondent is entitled to have the notes delivered to it and to have judgment against appellant in the sum of $450, together with interest thereоn. Judgment was entered in favor of' appellant for the possession of the resaw, and, in case delivery thereof cannot bе had, for $1,350, its value, less $650; that respondent have possession of the notes and judgment against appellant for $450 principal and $212.62 intеrest. Appellant moved for a new trial and has appealed from an order denying its motion.

'Appellant moved for a postponement of the trial and in support thereof presented the affidavit of its manager to the effect that on the evening of November 18, 1914, while in Boise, he received a telegram from his attorneys advising him of the setting of the case for trial on the 21st of that month; *569thаt he at once notified E. T. McDonald, by telegraph, at Vancouver, B. C., of the time and place of the trial and urged him to be prеsent, and was thereafter informed by him, by wire, that he could not arrange his affairs so as to be present on ‍​‌‌​​​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌​‌‌​​‌‌​‍such short notice. The affidavit further discloses that arrangements had theretofore been made with McDonald, who was the agent of appellant at the timе the resaw in question was sold and who negotiated the sale, to attend the trial and testify.

Respondent contends that the facts set forth in the affidavit to which it is alleged McDonald would testify, if present, are insufficient to have justified the court in granting the continuance because they relate to breach of warranty and there is no such issue in the ease. The contention appears to be wеll founded, and would probably be sustained if the showing for continuance was otherwise sufficient. It is fatally defective in that it fails to establish diligеnce on the part of appellant in the effort to procure the attendance of the witness. No reason is advanсed why its attorneys did not notify affiant of the date of the trial in time to give him opportunity to produce McDonald thereat.

An order grаnting or denying a continuance will not be disturbed ‍​‌‌​​​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌​‌‌​​‌‌​‍on appeal in the absence of a showing of abuse of discretion. (Rankin v. Caldwell, 15 Ida. 625, 99 Pac. 108.) Where therе is no evidence of a diligent effort to procure the attendance of a witness, refusal to grant a continuance, beсause his presence at the trial cannot be procured, is not an abuse of discretion. (Walsh v. Winston Bros. Co., 18 Ida. 768, 111 Pac. 1090; De Puy v. Peebles, 24 Ida. 550, 135 Pac. 264; Corey v. Blackwell Lumber Co., 27 Ida. 460, 149 Pac. 510.)

Appellant asked leave tо amend its complaint and to allege that the purchase price of the resaw was $1,350, which respondent promised to pay; that no part thereof had been paid, except $650, and that the balance, ‍​‌‌​​​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌​‌‌​​‌‌​‍$700, together with interest thereon, was due and OAving. It sought judgmеnt as prayed for in its original complaint and asked that, if such relief be not allowed, it have judgment against respondent *570for the amоunt remaining unpaid on the purchase price of the resaw, together with- interest thereon, and that such judgment be decreed to bе a prior lien upon the property in question. The request for leave to amend was denied.

The conditional sale contrаct provided that title to the resaw should remain in appellant and, for respondent’s failure to pay the purchase price as in the contract stated, appellant might retake possession thereof. This is an action' of replevin, and, in ‍​‌‌​​​‌​‌‌‌‌​​‌‌​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​‌‌​​​‌​‌‌​​‌‌​‍order to commence and maintain it, appellant must have exercised its option to rescind the sale and to repossess the рroperty. The cause of action stated in the proposed amendment was defeated by that election and the amеndment was properly rejected.

The contract does not provide for a forfeiture of payments made, nor does it obligate respondent to pay for the use of the machine, or for damages which may have occurred to it, in the event of its being repossessed by appellant. Conditional sales, like other contracts, are to be construed according to the intent of the parties, as disclosed by the terms employed when they are not ambiguous. (Miller-Cahoon Co. v. Lawrence, 31 Ida. 704, 176 Pac. 774.) There is no ambiguity in the contract here under cоnsideration. It allowed appellant to sue to recover the purchase price or to retake the property. It does not provide for both remedies, Having elected to repossess i the machine, the sale was rescinded and, since thеre is no provision in the contract to the contrary, appellant must, if delivery of the property can be had, return the notеs and refund the money paid as part of the purchase price.

There is no error in the judgment. Respondent can recover a money judgment only in ease possession of the property can be had by appellant. If possession cannot be had, appellant should have judgment against respondent for $700, the unpaid balance on the value of the property. If possеssion can be had, respondent should have judgment against appellant for $662.62, being the amount paid upon the purchase priсe of the resaw, less the cost of returning it to Beloit, Wisconsin, together with interest.

*571The cause is remanded, with instructions to the trial court to modify the judgment as herein indicated. The order appealed from- is affirmed. Each party to pay its own costs on 'appeal.

Rice and Budge, JJ., concur.