22 Utah 196 | Utah | 1900
This action was before this court on a former appeal, and the decision thereon is reported in 19 Utah, 140. In 1890, F. 0. and Jennie Horn were doing business under the firm name of the Wasatch Drug Company. On that day they purchased from the plaintiff Charles Lippincott & Co., a soda fountain, the property in question here, by a contract of conditional sale, giving a large number of notes in connection with the contract, all providing that the title to the soda fountain should not pass to the Wasatch Drug Company until all of said notes were paid, and that until then the title thereto should remain in Lip-pincott & Co., who had the right in case of nonpayment at maturity of either of said notes, without process of law, to enter and take immediate possession of said property wherever it may be and remove the same. It was further provided in said notes that in case they, or either of them, were placed in the hands of an attorney for collection after maturity, by suit or otherwise, that the makers should pay a reasonable attorney's fee, and costs of collection. The notes falling due January 1st, February 1st, and March 1st, 189?, were unpaid at the time this action was commenced.
Prior to March 20, 1897, Horn and wife, trading as the Wasatch Drug Company, made an assignment of all their
At the conclusion of plaintiff’s testimony, the defendants moved for a non-suit on the ground that the unpaid notes had not been tendered back to the makers F. O. and Jennie Horn. The non-suit was grantpd, and the action was dismissed. Frond this judgment of dismissal the plaintiff appeals.
One of the questions involved in this appeal is whether the plaintiff was bound to tender back the unpaid notes to Horn and wife before bringing this action in replevin; and another question is whether the notes were negotiable.
The notes in question were past due, and in the hands of the payee when the action was brought. One condition of the notes was that a reasonable attorney’s fee should be paid in case the notes should be placed in the hands of an attorney for collection after maturity. The amount of the attorney’s fee was not definitely fixed and
The transfer of the soda fountain by assignment, while good between the parties, was fraudulent as to creditors, and conveyed no title therein to the defendants. Under the contract of conditional sale the plaintiff was entitled to take possession of the property on conditions broken, as held in Lippincott v. Rich, et al., 19 Utah, 140. Bur-rill on Assignments, Sec. 323.
The title to the property, as shown by the contract of conditional sale contained in the notes, did not pass to the grantee until all the notes were paid. Until then the title remained in the plaintiff with the absolute right in case of non-payment of the notes at maturity, without process of law, to take immediate possession thereof and remove the same. There was no provision or agreement in the notes that in case of their non-payment, or forfeiture of the contract for non-payment, that the unpaid notes should be surrendered to the makers.'
As we have seen the notes were past due and not negotiable. Their transfer before or after maturity would not injure the makers. At the time of the demand these notes were tendered to Forbes, the assignee of Horne and wife, the makers. As between the two, Forbes represented the makers in that transaction. Whatever right Horne and wife possessed in the property was transferred to Forbes by the assignment. As to those parties the assignment was valid. Burrill on Assignments, Sec. 223.
. The possession of the property had been transferred to Forbes by Horn and wife, and he took possession and. assumed the responsibility of the notes in so far as to offer
But under the contract it was competent for the plaintiff to disaffirm the sale, and demand possession of the property, without tendering back the non-negotiable notes to the makers. The title to the property never vested in the vendee, nor in the defendants. It remained in the plaintiff. The contract, on failure of a payment of the notes, authorized the plaintiff to take possession of the property wherever it may be without tendering back the notes. Under such circumstances the plaintiff was entitled to demand and recover the property without any tender of the notes being made to the maker. Kirby v. Tompkins, 3 S. W. R. 363 (48 Ark. 273); Fleck v. Warner, 25 Kas. 342; McRea v. Merrifield, 48 Ark. 160; Bauendahl v. Horr, 7 Blatchf. 548; Tufts v. D’Arcambal, 85 Mich. 185; Lippincott v. Rich, 19 Utah, 140.
A conditional salé reserving the title to the property in the seller until payment of the purchase price, evidenced by notes which are not negotiable, with a right to take possession of the same in case of failure to perform the conditions is valid in this State not only between the parties, but also as against third parties, and it is not a condition precedent to an action in replevin by a vendor of a conditional sale in such a case that he return the nonnegotiable notes given by the vendee as a part of the con
The case of Segrist v. Crabtree, 131 U. S. 387, cited by the respondents, arose out of a suit in trover for the conversion of cattle transferred by absolute bill of sale and for negotiable notes given in payment without any condition thereto, and without written authority to take possession in case of default in payment. The case is based upon an entirely different state of facts and a different cause of action from the one under consideration.
We are of the opinion that the court erred in granting the non-suit, and in holding that the notes should have been tendered back to the makers before suit.
The judgment of the district court is reversed. The cause is remanded to said court with directions to grant a new trial.
Plaintiff is entitled to costs.
