255 N.W. 120 | Minn. | 1934
The contract was made between plaintiffs decedent, Priscilla Livingstone, as seller and defendant Havens as purchaser June 31, 1924. The purchase price of the goods was $900 — $300 payable in cash and $25 monthly thereafter. Defendant has been in persistent default, in consequence of which plaintiff resorted to replevin to obtain possession, to which he was entitled under the contract.
1. There has been argument here that the contract was a chattel mortgage rather than a conditional sale. That argument comes too late. The point was not made below at all as appears from the pleadings and a statement by defendant's counsel made during the trial. No such departure from the theory of trial will be permitted on appeal. 1 Dunnell, Minn. Dig. (2 ed. Supp.) § 401.
2. The one question meriting consideration is whether defendant may recover the payments he has made on account — $325 — less an item of $50 which he admits to be the value of his use of the property while in his possession. (His pleadings make no mention of any additional credit against his payments because of depreciation in value.) In such case the better rule is said to be, and we adhere to it, that "where the buyer has made default in the stipulated payments and the seller has exercised his right to retake possession, the buyer has no right in an action at law to recover the instalments of the price theretofore paid, even though there is no express provision in the contract" for the forfeiture of *625
such payments. 24 R.C.L. 501; 55 C.J. 1279; annotations 38 L.R.A.(N.S.) 891; 37 A.L.R. 91; Reinkey v. Findley Elec. Co.
The case presents no equities for defendant entitling him to any accounting from plaintiff for payments under the rule of such cases as Groen v. Ferris,
An error assigned because of the suppression of a deposition for defendant needs no consideration because there is no showing that it contained any material evidence.
Order affirmed.
DEVANEY, Chief Justice, took no part. *626