162 P. 856 | Or. | 1917
delivered the opinion of the court.
There is no substantial conflict in the evidence. On August 5, 1914, the notes, chattel mortgage and real estate mortgage were executed. The first note was. due November 1, 1914, and no part thereof was paid. On April 20, 1915, the defendant still being in default,, plaintiff directed the sheriff to seize the personal property and sell it in accordance with the terms of the chattel mortgage, and at the same time began this suit to collect the purchase price and to foreclose the' real estate mortgage.
Defendant urges with much force the contention that the contract as .set out in the promissory notes- and the chattel mortgage constitutes but one agreement which is purely a conditional sale; that the seizure by the sheriff was nothing more than a retaking of the machinery under the vendor’s reservation of title, and that such action is in effect a rescission of the contract which leaves the real estate mortgage-without consideration. It seems perfectly clear to the writer that the facts disclose a clear and unequivocal election upon the part of plaintiff to treat the transaction as a completed, absolute sale, and to proceed
There is another group wherein the vendor reserves title within himself, with an express power to retake the chattel upon default and sell it, applying the proceeds of such sale upon the purchase price, but without any stipulation for a continuing liability upon the part of the vendee. As to the effect of this class of contracts the authorities are in conflict. In Kansas .and Michigan the courts have held that the vendor is ■entitled to take and sell the chattel, apply the proceeds •of such sale to the purchase price, and then proceed by action to enforce the collection of the unpaid balance thereof: Christie v. Scott, 77 Kan. 257 (94 Pac.
“We are not to construe equities into the contract, but to carry it out as the parties were content to make it. If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum.”
However we may deplore the folly of the defendant in entering into such a contract or the unbounded avarice of a plaintiff who would enforce it to such an extent, we cannot see our way clear to relieve the defendant from the burden of his deliberately assumed obligation.