209 Wis. 397 | Wis. | 1932
The particular finding of the court which must be considered here is, that on the 7th of December, 1930, the automobile was stolen by a person, or persons, unknown. If this finding is against the great weight and clear preponderance of the evidence, that is if the only reasonable inference to be drawn is that it was taken by Reynold, the
The determining question now becomes, Was there such a retaking by the seller’s assign, the.respondent, as to warrant holding Reynold guilty of larceny because of what subsequently occurred? The slight interruption of Reynold’s possession over the car did not in and of itself destroy all ■color of right on his part to the car acquired by him under his conditional sales contract from Korman-Schmidt Auto Company. He doubtless knew he was in default; but if he attached any importance to finding the car across the road from plaintiff’s garage, it is likely that he sensed in it some reflection of the litigation which had occurred between him and the respondent early in. the summer of 1930. It would not be notice to him of recaption under the sales contract or constitute a retaking of the car. When the buyer of a car is in default in the payment of any sum due under the contract and the breach has been expressly made a ground for the retaking of the car, the seller or his assigns may retake possession thereof. The statute, however, regulating the procedure provides that unless the goods can be so retaken without breach of the peace they shall be retaken by legal process. Sec. 122.16, Stats. The fact that the car in this case was moved from in front of the hotel to a place in front of a schoolhouse in the public street near respondent's garage does not put the car so completely in the possession of Respondent
In Van Wren v. Flynn, 34 La. Ann. 1158, there had been a taking of furniture from the home of the plaintiff by entering the same while his mother, sister, and sister-in-law were present. Having informed them of his intention to take the furniture, disregarding their statement that the plaintiff would return shortly and the request to wait until such return, the defendant caused the furniture to be taken out. It was there held that notwithstanding non-payment of the notes the owner of the conditional sales contract was not authorized to enter the home of Van Wren in his absence without his consent and without notice to take away the furniture. The right of the seller under this form of contract is made as absolute as it can be, limited as it is by the positive statutory requirement that “unless the goods can be retaken without breach of the peace, they shall be retaken by legal process; but nothing herein shall be construed to authorize a violation of the criminal law.” The legislature has made it a misdemeanor for the buyer maliciously, or with intent to defraud, to conceal the goods held by him under such a contract. Sec. 122.15. The rights of all interested under a conditional sales contract are affected by the public policy necessarily suggested by the words quoted from sec. 122.16.
Authorities referred to in the Uniform Laws Anno., vols. 2, 2a, under the title “Retaking of goods,” indicate the necessity of a peaceable removal from the buyer. The law
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the plaintiff’s complaint.