Dederick v. Wolfe, 68 Miss. 500

Dederick v. Wolfe

68 Miss. 500 | Miss. | 1891

Campbell, J.,

delivered the opinion of the court.

By the writing sued on the makers obligated themselves to pay the sum stipulated, absolutely and at all events, and were to have the possession and use of the article named until full payment of the price, or until deprived of it by the act of Dederick for his own security, the title remaining in him until full payment of the agreed price, and any payment made before resumption of possession should be considered as payment for use, but nothing “ shall constitute a defense or offset or delay prompt payment of this note in full at maturity.” The manifest purpose of the parties was to secure the press to the buyei’, and the stipulated price to the seller, and hence the transfer for use of the press, and the retention of title in the seller until paid for. The transaction was plainly a sale, with reservation of title as security for the price, and resorting to the press as means of securing payment of the note was in pursuance of the contract, and did not preclude a recovery on the note, which by its terms and the superadded stipulation was to be paid at all events, and without defense. The case of Bailey v. Hervey, 135 Mass. 172, relied on by counsel for the appellees, rests on the *505assumption tbat the seller was not entitled to the goods sold and full pay for them, and as he had seized the things sold and converted them to his own use, he had made an election between inconsistent things, and was bound by this election. In the .case before us the seller merely resorted to the thing sold to make it available as a security for the note due and unpaid. He did not claim the right to the press and the money too, but to make what he could by a sale of the press at a public outcry after due notice, and hold the makers of the contract to pay the balance. Dederick did not by his course elect to abandon his right to recover on the promise to pay, nor did he do anything inconsistent with a claim for the performance of that promise. The title was retained by the seller for the very purpose of being made available to the payment of the money promised, and it would be a strange result if the exercise of this undoubted right by the seller as stipulated for by the buyer, should preclude a recovery on the promise which by its terms was to admit of no defense. It is true, it was stipulated that any payment made should be considered as “ payment for use,” but it was also stipulated that no “cause shall constitute a defense” of the promise to pay the money; and the proposition that Dederick, by taking possession of the press to make it available as security, surrendered or abandoned or lost his right to go for the money still due is not maintainable. It rests on the view that the contract was really a mere hiring for use, and that the seller could end it by taking possession of the press, at any time, and treat any payment he had received as hire or rent, and this view would be maintainable, if regard be had to a single stipulation of the contract, but “ in determining the real character of a contract courts will always look to its purpose rather than to the name given to it by the parties.” Hervey v. R. I. Locomotive Works, 93 U. S. 664, and see Heryford v. Davis, 102 Ib. 235, in which latter case the court dealt with a contract substantially like the one before us, and took the same view of its effect as we do of this.

The cases supporting our view are numerous. Many are referred to in 3 Amer. & Eng. Enc. Law, 426. Our own are decisive in *506its favor. Duke v. Shackleford, 56 Miss. 552; Burnley v. Tufts, 66 Ib. 48.

It would be a most unreasonable interpretation of tbe contract to bold that Dedericlris taking possession of the press was an abandonment of his claim to be paid what had been promised and not paid. There is no express provision to that effect, and to give such effect to Dedericlris act is to cause a forfeiture of his right to be paid in full, at all events, as promised by the buyer, while the other view does justice to both parties, according to their contract, by allowing the seller what he was promised and the buyer what was ¡purchased, and treating the press as it was intended to be, as a security for the payment of the stipulated price.

Reversed and remanded for a new trial.