24 Colo. App. 506 | Colo. Ct. App. | 1913
On April 20, 1910, appellant and appellee entered into an agreement whereby the former was to sell and the latter buy a stock of drug's which appellant owned in the city of Denver. By the terms of this agreement Ford, the appellee, was to pay for the drug stock the total sum of $9,400, $2,500 of this sum to be paid in cash, the balance upon the delivery of a bill of sale by appellant to appellee. The bill of sale was to he delivered after the requirements of the statute relating to the sale of goods in bulk had been complied with. The statute referred to in the agreement was presumably sections 2678-9 B. S. It required at least five days to comply with the conditions of this act. Appellee entered into possession of the stock of goods on April 20, 1910, at which time he paid appellant $2,500. Twenty-four hours thereafter, professing to
When the case was called for trial plaintiff moved for judgment on the pleadings, his motion was granted, and judgment for the full amount prayed for rendered against defendant. From this judgment defendant brings the case here on appeal.
1. The contract of sale is clearly executory, since defendant had not transferred the title by giving bill of sale, as required by its terms, and the balance of the purchase price had not been paid at the time plaintiff sought to rescind the agreement. The title to the stock of goods still remained in the defendant, as that was the evident intention of the parties, disclosed by the contract, and, notwithstanding the fact that plaintiff had taken possession pending compliance with the statute hereinbefore mentioned, after which only the transfer of title was to be made and balance of purchase price paid. — 1 Meachem on Sales, secs. 476, 477. Under these circumstances defendant’s remedy, if the breach was wrong and therefore actionable, was in damages. The title of the goods remaining in the defendant, and he having retaken possession, he could not maintain an action for specific performance of the contract. — Sour Lake Co. et al. v. Deutser F. Co., 39 Tex. Civ. App., 86, 94 S. W., 188; Ridgley v. Mooney, 16 Ind. App., 362, 45 N. E., 348; Dill v. Munford, 19 Ind. App., 609, 49 N. E., 861; Murphy Co. v. Exchange Bank, 76 Neb., 573, 107 N. W., 845; American H. & L. Co. v. Chalkley, 101 Va., 458, 44 S. E., 705.
The answer admits the receipt and retention of the $2,500 paid upon the purchase price of the store. As the contract, for reasons already pointed out, was executory, and the title to the goods had not passed from the vendor, he was in no position to retain this sum as purchase money; no purchase had been consummated. He could retain it, if at all, as and for damages, which damages
Viewed from the standpoint most favorable to defendant, the record discloses that plaintiff has been guilty of breaching an executory contract, without in any manner occasioning, defendant damages. Having admitted that he has $2,500 of plaintiff’s money, and making no counter-claim against him for damages, nothing remained for the trial court to do but enter judgment against the defendant for that sum.
2. It is contended with much plausibility on behalf of appellee that notwithstanding defendant’s allegations in his answer that he protested against the abandonment of the contract by plaintiff, and declined to consent to its rescission, nevertheless, by his action in retaking the goods and exercising acts of ownership over them, which he admits in his answer, he must be held to have con
In the last case, at page 370, the Indiana court uses this language:
“The taking possession of the goods and storeroom, and treating them as their own, and selling them in their own names by the appellees, after the abandonment by the appellants, was, under the authorities, a rescission of the contract. ’ ’
In the Georgia ease cited, page 7, 42 S. E., 368, appears the following:
“There is no authority or'precedent in law for the course pursued by plaintiff, after the alleged violation by the defendants of their contract, in continuing to conduct the business for nearly a year, buying new goods, opening additional accounts (many of which were admitted to have been bad), and keeping traveling salesmen on the road for the purpose of selling the goods.”
It appears to be defendant’s theory that he. is conducting the store as the agent of the plaintiff, and that he holds it ready to be turned over, under the contract, when the terms of the contract shall have been carried out, and when he shall have been paid for his services and disbursements as such agent. In other words, he apparently is proceeding upon the theory that he has performed his part of the contract of sale, and therefore may hold the property subject to the buyer’s order, and recover the full agreed price, or perhaps that he may sell it for the buyers and then recover the difference between the proceeds of the sale and the agreed price; but his conduct, as admitted in his answer, will not admit of the application of either of these rules granting the antecedent facts
It will be seen from what we have already stated that under defendant’s answer he admits having taken possession of the stock of goods, and from April 21st to July 16th, a period of eighty-five or eighty-six days, he continued to sell goods at retail, and to replenish the stock as it seemed to him the requirements of the business demanded. There is nothing in the pleadings to indicate just what these retail sales and these purchases by the defendant aggregated, but it is charged in the complaint that the defendant represented that the daily sales amounted to $80. Taking this for a basis, during the eighty-five or eighty-six days that he held the stock of goods before filing his answer, he would have disposed of almost $7,000 worth of goods, and if he kept the stock up, would have purchased many thousands of dollars’ worth. At any rate, we may safely assume that a very substantial portion of the original stock of goods had been disposed of by the defendant after he took possession, on May 21st, and before he filed his answer, on July 16th, and the stock must have undergone a substantial change. No authority has been called to our attention, and we know of none, holding that under the circumstances here related, a vendor has the right to sue on the contract or to bring an equitable action for its enforcement. By repossessing himself of the goods, and in all respects treating them as his own, selling them in the customary course of business, as he admits in his an
The defendant had every opportunity to set up a counter-claim for damages for the breach of the contract. For reasons satisfactory to himself (presumably because he believed the stock of goods to be worth as much or more than the sum which, under the agreement, he was to receive for it) he waived this, his only available remedy, and the judgment of the trial court must be affirmed as to the $2-500 item.
3. Whether the plaintiff was entitled to a judgment on the pleadings for the $127.04, which he alleges he left in the cash register, depends upon the sufficiency of defendant’s answer, which reads as follows:
‘ ‘ The defendant, answering, says that as to that portion of the complaint which avers that the plaintiff, upon taking possession of said store on April 21, 1910, placed the sum of $127.04 in cash in the register of said store for the purpose of making change, he has not sufficient knowledge or information on which to base a belief, and therefore prays full and strict proof in respect thereto.”
While the language of this denial may be subject to criticism, we think it is sufficient to raise an issue, and that it cannot fairly be said to constitute an admission that thip sum of money was left in the cash drawer by Ford and retained by McCrea. Therefore, in the absence of all proof, the trial court ought not to have awarded plaintiff judgment for this sum, and its judgment must be accordingly modified.
The case is remanded, with. directions to the trial court to enter judgment for the plaintiff and 'against the defendant for the sum of $2,500, with. interest thereon from April 21st, 1910. As to the $127.04, the respective
Remanded ivith Directions.