79 Mo. App. 302 | Mo. Ct. App. | 1899
Plaintiff and the assignor of the defendant entered into the following contract:
(In Duplicate.) “St. Louis, March 23, 1896.
“It is hereby agreed by the Ennis Stationery Company to purchase from the Laclede Power Company of St. Louis the following motors: (Here follows a description of motors).
“Theamount to be paid for thesemotors to besixteenhun-. dred dollars ($1,600) payable as follows: Three hundred dollars ($300) to be paid April 1st by note due July 1st, 1896, one hundred dollars ($100) payable October 1st, 1896, and notes for twelve hundred dollars ($1,200), one hundred dollars ($100) each, payable the first of each month thereafter, until the above sum of $1,600 is fully paid.
“And it is further agreed that the above motors shall be' and remain the property of the Laclede Power Company until the said sum of $1,600 shall be fully and finally paid, and in case of default in payments as above agreed, or in the payment of any of the above notes, the Ennis Stationery Company agrees that the agents of the Lacledb Power Company may enter their premises and take possession of and recover said motors and appliances without being guilty of any trespass or tort, and without thereby rendering themselves liable to refund any sum received by them as instalments on the payment of said motors.
“It is further agreed that if on October 1st, 1896, the Ennis Stationery Company find that the motors do not operate satisfactorily, they are to have the option of canceling all payments due thereafter under this contract, the Laclede Power Company to take back the motors. It is also agreed that the -above price includes the setting up and connecting of the 7 1-2
“The Laclede Power Company of St. Louis,
“Agreed to 3-26-96. E. Y. Matlack, Sec’y.
“Ennis Stationery Company,
“Geo. T. Dunn, Sec’y.”
Tbe above contract was executed by tbe parties by tbe delivery of tbe property and tbe making of tbe notes therein specified. Tbe first three of these notes, aggregating $500, were paid to plaintiff, tbe remaining notes have not been paid. On tbe fifteenth of January, 1897, plaintiff caused tbe aforesaid contract to be duly-recorded in tbe recorder’s office of this city. On tbe eighteenth of January, 1897, tbe Ennis Stationery Company made an assignment of its assets to defendant for tbe benefit of its creditors, thereupon tbe representatives of tbe plaintiff called upon tbe defendant to ascertain if be intended to pay tbe balance of $1,100 due for tbe motors described in the aforesaid contract. Defendant replied that be did not intend to do so. Plaintiff’s agent then stated that under tbe contractthe motors belonged to plaintiff in default of paymentof their purchase price. Defendant assented to this and stated that be would give them up; that plaintiff could have them at any time. He,however, asked that they be left where they were for about two days until be could finish some work which be was required to do as assignee. This was agreed to and be was told to write to tbe plaintiff company a request to furnish power to him as assignee, which was done. At tbe conclusion of the work on hand defendant notified plaintiff, and also stated to it that certain persons were speaking of buying tbe plant in bulk, wherefore be thought that it might be well for plaintiff to leave tbe motors until be could make a sale of tbe assigned estate, and if tbe purchaser thereof wanted them plaintiff might thus be enabled to realize their value. Defendant did
There was no error in the refusal by the court of any of the declarations of law requested by plaintiff except the one declaring the foregoing contract was a conditional sale. All the other declarations involved assumptions of fact which the court, as trier of the fact, was privileged, under the evidence, to refuse; but the refusal of the instruction defining the character of the contract was a harmless error. The undisputed evidence is that plaintiff had fully rescinded the contract when it agreed with defendant so to do and subsequently for his convenience left the property in his possession and thereafter labeled it as their own. The fact that the subsequent removal of the property was forbidden until defendant could submit the rights of the parties to his attorney, in no way effected the legal status which had arisen from the prior agreement and the
Neither can we sustain the contention that plaintiff may retake the property and also recover the unpaid portion of the purchase price, less the value of the property when retaken. First, the terms of the contract between the parties gave no such right to plaintiff. This will appear frominspection of the instrument. Secondly, in the absence of any such stipulation in the contract, the law governing conditional sales does not permit the vendor to retake the chattel, thus rescinding the sale, and then sue for the unpaid purchase money, thus enforcing the contract of sale. The law on this subject is the logical outcome of the particular agreement of the parties and the annulment thereof by a restoration of the thing which was agreed to be sold. When the subject-matter of the bargain is surrendered to the vendor, the consideration, as well as the contract itself, has failed and the vendee is no further liable thereon. What has been theretofore paid would, at common law, be forfeited to the seller; what has not been paid he could not recover from the buyer. Perkins v. Grobben, 39 L. R. A. 815; Leanor v. McLaughlin, 165 Pa. 150; Hine v. Roberts, 4 Conn. 267; Loomis v. Brag, 50 Conn. 228; Cole v. Hines, 81 Md. 476; White v. Oakes, 88 Me. 367; Green v. Sinker, Davis & Co., 135 Ind. 434; Altman & Co. v. Oleson, 43 Minn. 409; Rodgers v. Backman, 109 Cal. loc. cit. 557; Dowdell v. Furniture Co., 84 Ala. 316; Brown v. Haynes, 52 Me. 578; Bailey v. Harvey, 135 Mass. 172.