223 N.W. 908 | Minn. | 1929
Lead Opinion
Plaintiff sold personal property on the instalment payment plan on a conditional sales contract. Three monthly payments being in default, he sued to recover the same. The buyer did not answer. Plaintiff entered judgment upon default and filed a transcript thereof in district court, where an execution was issued and returned unsatisfied. Subsequently this action was brought in replevin to get possession of the property from the buyer, who has since become a bankrupt and his receiver in bankruptcy has been substituted as defendant.
1-2. This court has held that when the purchaser in a conditional sale contract is in default the seller can reclaim the property or he can treat the sale as absolute. Keystone Mfg. Co. v. Cassellius,
This court has not had occasion to consider any case involving only a delinquency in an instalment payment. When the seller sues upon the personal liability, procures a judgment and issues execution thereon, he must be held to have made an election of one of his three remedies. By the exercise of his right to sue he makes the sale absolute and by his conduct limits his right to the one remedy of collecting the debt. The assertion of this remedy is an abandonment of all others. C. W. Raymond Co. v. Kahn,
There can be no difference upon principle whether the seller seeks to recover the full amount or an instalment. Eiler's Music House v. Douglass,
The purchaser's liability to pay is absolute. He has no option. Reinkey v. Findley Elec. Co.
The most persuasive argument for the contrary rule, which exists in some states, is that suit for an instalment payment should have no greater effect than the payment itself. But this argument is based: first, upon the conception of such contract being in the nature of a lease, Silverstin v. Kohler Chase,
3. Plaintiff claims that a conditional sale contract gives the seller a lien upon the property and cites Fletcher v. Lazier,
It is not necessary that the seller at all times retain the actual physical possession of the property. It is sufficient that he retains such possession as will preserve in him the actual control of the property. Woodland Co. v. Mendenhall,
4-5. We see no reason why the uniform sales act does not apply to a conditional sale contract, except that the contract itself is to control as to those elements which it covers. G. S. 1923, § 8376(3), says a contract to sell may be absolute or conditional. G. S. 1923, § 8430(2), provides:
"The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained judgment or decree for the price of the goods."
The lien to which this language relates is the lien mentioned in G. S. 1923, § 8427(1) (a), which is a possessory lien and is a statutory affirmance of the seller's common law lien hereinbefore discussed. Such being the case, the three remedies of the unpaid seller were available, and had plaintiff been in possession of the property he could by virtue of § 8430(2) have reduced his claim to judgment without losing his lien.
But he was not in possession. He was in control by virtue of the conditional sale contract, which was the equivalent of possession for the purpose of foreclosing the lien. He could have foreclosed the lien. He did not. By virtue of the conditional sale contract and since the adoption of the uniform sales act he could have taken possession of the property, reduced his claim to judgment and still have asserted his seller's common law lien embraced in the statute. He did not. He did reduce his claim to judgment. This did not, by virtue of the statute, release his lien. But under our decisions above cited this act of reducing the claim to judgment, though not losing the seller's common law lien as affirmed by the statute, did *489 constitute an election of remedies wherein the sale was treated as absolute, the title vested in the buyer, the conditional sale contract effectually terminated, and the seller's control of the property lost; and his right to a seller's possessory common law lien became a nullity because he no longer had possession.
Affirmed.
Concurrence Opinion
I concur in the result because of the rule of this court, long established by the decisions cited by the Chief Justice, that the seller's suit, even for an instalment of the unpaid purchase price, passes title to the buyer. That rule is so well established that it seems the better part of judicial action to leave it to the legislature to change. On the merits I consider it indefensible, for it is the plainly expressed intention of the parties to the conventional conditional sales contract that no title shall vest in the buyer until all of the purchase price is paid and, while reserving title to the seller, to put in him the absolute right to collect each instalment of the purchase price as it becomes due. That being his unquestioned contract right, I fail to see any justification for the judicial notion that the seller's attempt by an action at law to get the money that is absolutely his should result in the penalty of the loss of the title that by the contract is to remain in him until all of the price is actually paid. The rule that the seller's action to recover an instalment of the purchase price passes title seems to me to ignore the primary rule for the construction of contracts that the intention of the parties shall control. It does not effectuate, but on the contrary thwarts, an expressed contractual intention. In this connection I think it should be said that the reference in St. Paul Tr. Co. v. U.S. Cereal Co.
