8 N.M. 396 | N.M. | 1896
This is an action in replevin, brought to recover possession of a soda fountain and apparatus. The cause was tried before the court without a jury, upon a stipulation as to the facts. Burgess & Son gave their notes, and acquired the property from Tufts under what is usually described as a “conditional sale.” The controlling clause is as follows: “It is understood and agreed by and between us and the said James W. Tufts that the title to the above mentioned property does not pass to us, and that until all said notes are paid the title to the aforesaid property shall remain in the said James W. Tufts, who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law to enter and retake immediate possession of the said property, wherever it may be, and remove the same.” The contract was not filed or recorded in the recorder’s office. The Bank of Commerce brought suit by attachment against Burgess & Son, and levied it upon the chattels in question. Eight of the installment notes having become due and remaining unpaid, Tufts, after demanding possession of the property, brought this action in replevin. The court below found in favor of the plaintiff, and the defendant, Maxwell, who held as receiver in the attachment case, brought this case here by writ of error.
Upon the argument the plaintiff in error raised the point that, before the plaintiff below could maintain his replevin, it was necessary for him to tender the return of the notes given for the deferred installments of the purchase money; citing Segrist v. Crabtree, 131 U. S. 287, 9 Sup. Ct. 687. But the case was tried below upon a stipulation which purported to contain a recital of “all the facts material or necessary to the determination” of the case, except as to the value of the property, and damages for its detention. The stipulation does not disclose whether the tender was made or not, and the point now seems to have been raised for the first time in this court at the argument. The assignment of error embraces two specific grounds, uamely: (1) That the title passed to Burgess & Son; and (2) that the conditional sale was not recorded. The assignment of error does not include the question now raised, and it can not, therefore, be considered. The judgment must be affirmed.