187 P. 510 | Nev. | 1920
By the Court,
after stating the facts:
The court found that respondent was entitled to judgment for the repairs item because plaintiff took away the trucks, took respondent’s tires and replacements, and took the benefit of the money he had expended to put them in condition for use, stating that they were bettered -at Crumley’s expense, and that if a man accept the benefit of another man’s work and money he should pay for what he gets. It is fair to assume from this general statement taken from the court’s opinion, read in connection with its decision as requested, that the court attempted to apply the rule of voluntary acceptance of services as creating a liability to pay the reasonable and fair value thereof. This rule applies, however, only where the party to whom the services are rendered is free to take their benefit or to reject it. If the services are of such nature as he has no choice but to accept them, he cannot be said to accept them voluntarily. Such acceptance, therefore, creates no liability. 2 Page on Contracts, sec. 776.
The court in its opinion states:
“What should be done about the repairs item presents more difficulty, because that amount represents value or property that cannot be removed from the trucks.”
This is true. The repairs, at the time plaintiff took possession of the trucks, had gone into and become a constituent part of the property. In this situation the
Upon this branch of the case we conclude the court erred in rendering judgment' in favor of respondent and against appellant for the amount of the repairs item, to wit, $339.4(3.
*367 “That any equipment, repairs, tires or accessories of any character placed upon said trucks during the continuance of said agreement shall be and become a component part thereof, and that the title thereto shall immediately become vested in the seller and be included under the terms of said agreements.”
From this it is apparent that the seller itself regarded tires and replacements as being separable and severable distinct parts, and not accessions. The vendor recognized that the vendee might acquire a separate property interest in tires and replacements during the period of the contract; otherwise there would have been no necessity for the provision.
“Where the seller of an automobile under a contract of conditional sale retakes the automobile upon default of the buyer to keep the terms of the contract, he is entitled to any tires or other replacements which the purchaser placed on the machine while it was in his possession, provided the title to such parts passed to the purchaser when he acquired them.” Berry, Automobiles (2d ed.) 793.
The lower court found- Crumley to be the owner of the tires and replacements, and nothing is offered in opposition to this finding, other than the sale contract, to which Crumley was not a party.
We conclude that the judgment must be reduced, and the respondent have judgment for the sum of $816.40, less the sum of $339.40, making a total of $477.