Haworth v. Jackson, 178 P. 926

Haworth v. Jackson

178 P. 926 | Or. | 1919

BURNETT, J.

This suit seems to be an aftermath of Haworth v. Jackson, reported in 80 Or. 132 (156 Pac. 590). There, the effort was to wind up the partnership alleged to have existed between the Haworths and Manning, and that upon the settlement of the accounts and the application of the deposit of $315 upon the purchase price of the truck the plaintiffs there be declared to be the owners of the truck and *276that the then defendants, Jackson, Bnrpee and Manning, he enjoined from claiming any interest in the property. From an adverse decision in the Circuit Court the Haworths appealed and it was held here that on the merits of the partnership transaction there had been a settlement thereof agreed to by the former partners, and that the complaint was not sufficient as one to redeem the truck, besides which there was no evidence upon which such a decree could be framed. The decision of the Circuit'Court was affirmed, but “without prejudice to the right of the plaintiffs or of Manning, or of anyone claiming under either of them, to bring suit to redeem the truck as indicated in McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33).” The plaintiffs in the present suit contend that the modification noted in the former decision became the law of the case and that they were conclusively given the right to redeem the truck.

1. As a preliminary question, it is necessary to determine the effect of dismissing a suit “without prejudice.” In the early case of Lang’s Heirs v. Waring, 25 Ala. 625 (60 Am. Dec. 533), in discussing this phrase the court said:

“The effect of such reservation in the decree for dismissal is to prevent such decree from constituting a bar to another bill brought upon the same title; but it by no means compromits the court as a judicial determination in favor of such title. In so far as the former decision leaves the questions for discussion open, we must address ourselves to them as though they were for the first time before us.”

Also, in Taylor v. Slater, 21 R. I. 104 (41 Atl. 1001), the court said:

“The effect of such a decree is stated in Reynolds v. Hennessy, 17 R. I. 169, 175 (23 Atl. 639), thus: ‘The *277intention and effect of such a reservation in a decree are, by express terms, to prevent it from operating as a bar to another suit. A dismissal “without preju-. dice” leaves the parties as if no action had been instituted.’ It gives to a complainant the right to state a new and proper case, if he can; but it takes away no right of defense to such suit on any ground, other than that of the judgment as a bar.”

See, also, Beach Mod. Eq. Pr., §§ 643, 644; O’Keefe v. Irvington Real Estate Co., 87 Md. 196 (39 Atl. 428); Burton v. Burton, 58 Vt. 414 (5 Atl. 281); Newberry v. Ruffin, 102 Va. 73 (45 S. E. 733).

These precedents teach us that the only effect of the clause “without prejudice” is to prevent the decree in which it appears from becoming a bar against the losing party, in any future litigation he may institute. To that extent only does it become “the law of the case.” As applied to the present controversy it did not give the plaintiffs a right to redeem. It only left the matter open for their benefit if they could avail themselves of it. Beyond this it has no effect on subsequent litigation. The result, therefore, of the modification was to give the plaintiffs an opportunity to state a case if they could, indicating McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33), as a possible precedent in their favor. It remains to be seen whether or not they have a complaint upon which the court can grant them relief.

2. They say that Manning bought the truck, but the contract they plead shows conclusively that he did not buy it but merely contracted to do so, leaving the absolute title in Riggs. The writing controls the complaint in the attempt of plaintiffs to stamp the transaction as a sale. At best it was only a conditional sale whereby the property was not to pass until full payment of the purchase price. Consequently, Manning *278had no title which he conld transfer to the plaintiffs in derogation of his contract. Eiggs did not reserve the property as for security. He declined to part with the title. It remained with him absolutely. This condition, which does not appear in McDaniel v. Chiaramonte, is part of the instrument here involved:

“In case of default of payment of any amount due, as above provided, or in case the undersigned (Manning) shall part with the possession of the said personal property, the said second party or his assigns shall have the right, at his or their option, to the immediate possession thereof, and to retain all sums previously paid, as the agreed and reasonable rental for the use of said personál property by the undersigned, and this contract shall terminate and end, upon the retaking possession of said personal property by the said second party, or his assigns.”

3, 4. When, as the plaintiffs plead, Manning parted with the possession of the property and transferred it to them, the right of Eiggs or his assigns to keep the payments as rental and retake the truck immediately attached. Under this stipulation, Jackson was not rescinding the contract by seizing the machine. He was pursuing the terms of the stipulation to fulfillment. The plaintiffs show no right to set aside this covenant. Their title cannot rise higher than its source, which is found in the Manning contract they plead. Eiggs did not contract with them, neither did any of the defendants. The complaint does not show even that Eiggs or the defendants had notice of the actions or claims of the plaintiffs. For all that appears in the complaint the owner of the property found it in the hands of strangers and as of right he took possession of it and sold it.

In their brief the plaintiffs argue that although time is made the essence of the contract, still acceptance of *279payments after due, constitutes a waiver of this condition, so that if the seller intends to claim default he must then give notice to the purchaser. No such waiver, however, is pleaded, and in the absence of an agreement to take the plaintiffs as contracting parties instead of Manning, no notice would be due to them from the seller or his assigns. The complaint does -not establish privity of contract or of estate in the property between the plaintiffs and the defendants. We cannot make contracts for parties. No doubt, the plaintiffs acted unwisely in attempting to buy the truck from someone who had no title, but we cannot help that situation of affairs.

The decree of the Circuit Court is affirmed.

Affirmed.

McBride, C. J., and Benson and Harris, JJ., concur.