J. I. Case Threshing Machine Co. v. Watson

122 Tenn. 148 | Tenn. | 1909

Lead Opinion

Me. Chief Justice Beaed

delivered the opinion of the Court.

The hill in this cause was filed to recover a balance alleged to be due on notes executed by one William Don-ahoo to the complainant company as the purchase price of machinery contracted and delivered by the complainant to him. To secure the payment of these notes; the title to the machinery was retained by the vendor. The purchaser having died, the defendant P. L. Watson was appointed administrator of his estate. Upon the ground that his intestate, for just reasons, had abandoned the contract, he declined to recognize these notes as claims against the estate. Thereupon the complainant took 'possession of the machinery and made sale of the same. Failing to realize the full amount of the purchase-money notes at this sale, which, it is alleged, was made “under and in accordance with the act of the State of Tennessee of the year 1899, chapter 81, regulating conditional sales of personalty,” this suit was instituted for the purpose stated above.

A number of defenses were set up in the answer of the administrator, among them being a denial that complainant had complied with the statute in question.

On this point the record shows that, immediately after taking possession of the property, it was advertised by the complainant for sale by printed posters that were put up in the civil district within which Donahoo lived and died, and where, also, his administrator lived; one of them being placed on the courthouse door in the town of M'adisonville, located within that civil district, and others in public places in other parts of Monroe, county, where the machinery was. It is insisted that in this there wás a failure to comply with the requirement of the statute referred to.

Upon regaining possession of property by a vendor in a conditional sale, because of the failure of the ven-dee to pay the full purchase money, as provided in the contract of sale, “the statutory duty of within ten days thereafter advertising the same for sale in the manner prescribed by the act is imperative; and a failure to discharge this duty in any important particular makes the vendor so reclaiming liable to the original purchaser for the part of the ' consideration theretofore paid.” Whitelaw Furniture Co. v. Boon, 102 Tenn., 719, 52 S. W., 155. It is true that no part of the purchase money in the case at bar was paid, and the particular question presented in this case just cited does not arise here; but the principle there announced is equally controlling.

Tlie insistence of the defendant on the point at issue is that no “notice of this sale was posted on the door of the courthouse of the county” where the “seller” resided, and that this being so, the sale was ineffectual to place any liability upon the estate of Donahoo, the deceased.

The conditional vendor in the present case is a corporation, with its situs at Racine, Wis. To have posted notice of this sale on the courthouse door at that point would have been an idle ceremony. We are confident that the legislature never contemplated that where a nonresident vendor made a conditional sale of personalty to a conditional vendee in this State, and then reclaimed the property because of the failure of the latter to comply with the terms of the purchase, in order to make a perfect sale under the act of 1889, notice of the same should he posted at the courthouse of the vendor. Such a requirement would be absurd. The provision as to the duty of the reclaiming vendor is found in section 1 of this act, which is in words as follows:

“That, hereafter, when any personal property is sold upon condition that the title remain in the seller until that part of the consideration remaining unpaid is paid, it shall be the duty of said seller, having regained possession of said property, because of the consideration remaining unpaid at maturity, to, within ten days after regaining said possession, advertise said property for sale, for cash to the highest bidder, by printed handbills, or written or printed notices, posted on the door of the courthouse of the county of which said seller resides ; and also at two public places in the civil district in which said original purchaser resides (said notice to be posted at least ten days before the day of sale, and to contain a description of the property to be sold, and time and place of said sale), unless the debt is satisfied before the day of sale, then it shall be the duty of said original seller, or his agent, at the time and place, as stated in said notices, to offer for sale said property, as provided above. ...”

This statute, though inartificially drawn, provides for two modes of giving notice by a reclaiming vendor, one by “printed handbills” and the other by posted notices, and we are satisfied contemplates two' distinctly different cases, one that of a nonresident seller with a purchaser residing in this State, or a seller resident in a county in this State other than that in which the purchaser resides, and the other where the conditional vendor lives in the same county in this State with the conditional vendee. In the first of these cases, as has been indicated above, the posting of a notice at the courthouse door of the county of the vendor, residing in another State, or, in a county in this State other than that of the residence of the conditional vendee, would be idle and of no effect, so far as giving notice of the sale was concerned. To meet such case it therefore provides that notice of the sale may be given by “printed handbills.” It is a matter of common knowledge what these are and the purpose they are to serve in the matter of a public sale. They are printed notices of such a sale, giving the time, place, and terms thereof, with a description of the property to be sold, distributed by hand, and it was the evident purpose of the legislature that this should be done with reasonable diligence and good faith among persons living in the neighborhood where the property is and the sale is to take place. When this is done, all opportunity for unfair dealing, as regards the purchaser, and unjust advantage of him is avoided.

The other class embraces the case of the conditional vendor who lives in the same county in this State with the conditional vendee, and the former chooses to make his sale in that county. In such a case the statute provides for the posting at the courthouse of the county, and also two public places in the civil district, in which the purchaser lives. This method secures, not only notice to the vendee of the sale which was to take place, but gives publicity to his neighbors, so as to insure the utmost fairness in the sale advertised.

This section bears this construction, and it is only by adopting it that the legislature can be relieved of the charge of having required of the nonresident vendor, as in the present case, a foolish and unnecessary act. In either case, we are satisfied that the noncompliance upon the part of the reclaiming vendor, in any respect, with the requirements of the statute would be ineffectual to convey the property sold, and equally ineffectual to place any other or further burden upon the conditional vendee.

In the present case the provision of the statute, for the benefit of the class to which the complainant belongs, was not availed of; but it saw proper to make advertisement under the other provision, with the result, that, as a matter of law, no valid sale was made. In legal effect it was, as section 4 of the act has been construed, a rescission of the contract. This being so, the complainant was not entitled to maintain the present bill as against the administrator of the delinquent ven-dee.

It follows that the decree of the chancellor, in so far as it grants relief to the complainant, is reversed, and. the bill is dismissed.

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Rehearing

ON REHEARING.

Mr. Chief Justice Beard

delivered the opinion of the Court.

A petition for rehearing in this case has been presented, in which it is insisted the court, in the opinion handed down, has changed the meaning of section 1, c. 81, p. 117, Acts 1889, invoked in the cause, by placing as is done, in the excerpt from the act, a comma after the words “printed handbills,” when in the original there is no such mark of punctuation. It is conceded by counsel of the petitioner that, thus punctuated, the section “is subject to the interpretation that the advertisement may be made in either one of the two manners [modes?]; that is to say, by printed handbills, or written or printed notices, posted on the door of the courthouse.”

That it should be construed so as to give effect to every part of tie section, and at tlie same time avoid absurd conditions, is certainly true. In the effort to do this, the question raised in the petition for rehearing is: Has the court kept itself within sound canons of interpretation? While the disjunctive conjunction “or” is sometimes used in a sentence to connect synonyms, yet it is ordinarily employed in stating alternative subjects and ideas. Illustrations of these several uses are to be found in the standard works of grammarians and lexicographers. For instance, in- the phrase, “The Prime Minister,' or head of the British Cabinet,” it evidently introduces a synonym, while in the sentence, “He may study law, or medicine or divinity, or may go into trade,” it as clearly marks alternative conditions; and the section of the act under consideration equally illustrates the two distinct uses to which the particle may be applied. But, whether used in one form or the other, the best authorities recognize the comma preceding the particle as proper, if not essential, to bring out the the true meaning of the sentence.

Not only have grammarians and lexicographers defined the word “or” as ordinarily indicating an alternative, but the courts in many cases have adopted and applied this definition. Kuehner v. Freeport, 143 Ill., 92, 32 N. E., 372, 17 L. R. A., 774; Caster v. McClellan, 132 Iowa, 502, 109 N. W., 1020; Whiteside v. State, 4 Cold., 175; McBride v. McBride, 111 Tenn., 616, 69 S. W., 781.

It was by giving the particle “or” its ordinary, and, as we think, its obvious, meaning, and then punctuating the clause, as approved by the best authorities, that the interpretation was reached, the soundness of which is complained of in this petition. It was assumed that, in the preparation of the act, by inadvertence or clerical omission the section was left by the draftsman to read as it is found published.

It is insisted, however, reading the section thus construed, no provision is made for the length of time before the sale that printed handbills announcing the same should be distributed. This is true; but, when the reclaiming seller is permitted to give notice in this form, the statute implies reasonable notice, and if he shohld undertake to make a mockery of this provision, by resorting to a trick or device which would be the equivalent of no notice, the courts, when applied to, would see that he, rather than the unfortunate purchaser, was the victim of the wrongdoing.

As is said in the opinion, in such case reasonable notice would be essential, and, while no fixed limitations can be given for this notice, it may, possibly, be properly inferable that the notice implied in the distribution of handbills would be the same as where notice is given in the other mode provided in the section.

Upon re-examination of the question, we are satisfied with the conclusion heretofore announced, and it is therefore adhered to.

The petition for rehearing is dismissed.