171 S.W.2d 834 | Tenn. Ct. App. | 1943
Robert Wright bought an automobile truck from Nashville Auto Sales Company under a conditional sales contract and paid $206.50 on the purchase price. Then he defaulted and the seller recovered possession of the truck by a replevin warrant issued by the *328 Court of General Sessions of Davidson County, Tennessee, on January 23, 1942. The replevin case was set for trial on January 26, 1942. Neither party appeared and the Court of General Sessions put the replevin warrant in a file which was used for cases where neither party appeared. It was the practice in the Court of General Sessions for either party to the suit to make application to have the case, which was continued in this manner, reset for trial. No further steps were taken in the replevin suit. The purchaser never made any defense to the replevin suit. The seller did not advertise and sell the truck.
Because of the failure of the seller to advertise and sell the truck which had been replevied, the purchaser brought the present suit on March 5, 1942, to recover the amount which he had paid under the conditional sales contract. The seller defended the suit on the ground that the replevin suit was still pending and that it did not have to advertise and sell the truck under the conditional sales act until final judgment was rendered in the replevin suit.
The trial court awarded the purchaser a recovery, and the seller appealed in error to this Court.
The applicable Code Sections are these:
Section 7287. "Failure to pay purchase money; advertisement and sale of chattel; waiver of sale. — When any personal property is so sold upon condition that the title remain in the seller, it shall be the duty of said seller, having regained possession of said property because of the consideration remaining unpaid at maturity, within ten days after regaining said possession, to advertise said property for sale for cash, . . ."
Section 7290. "Unsatisfied claim a legal debt. — Should said property, at the sale provided by this article, fail to *329 realize a sufficient sum to satisfy the claim of the seller, the balance still remaining due on said claim shall be and continue a valid and legal indebtedness as against said original purchaser."
Section 7291. "Purchaser may recover payments on failure to sell. — Should the seller or assignee, having regained possession of said property, fail to advertise and sell the same as provided by this article (unless said sale is waived as provided), the original purchaser may recover from said seller or assignee that part of the consideration paid to him, in an action for the same before any justice of the peace or court having jurisdiction of the amount."
Our Supreme Court has construed the conditional sales act in numerous cases.
In Lieberman v. Puckett,
International Harvester Co. v. Farmer,
In Gilliam v. Goodyear Tire Rubber Co.,
In Wallis v. B A C Corporation,
The seller relies upon the case of Model Garage Co. v. Sanders,
The Model Garage Co. case is not in point here because the purchaser litigated the replevin suit in that suit and *332 thereby controverted the right of the seller to repossess the car.
In the instant case the purchaser did not controvert the right of the seller to repossess the truck by replevin. He did not litigate the replevin suit. Wherefore, it became the duty of the seller to advertise and sell the truck under the statute within ten days from the time it repossessed it. Having failed so to do it became liable to the purchaser for the amount which he had paid under his contract. There was no error in the judgment of the trial court and that judgment is affirmed. Let a judgment be entered in this Court in favor of Robert Wright against Nashville Auto Sales Company and Elkin Garfinkle, the surety on its bond, for $206.50 with interest thereon from August 22, 1942, the date of the entry of the final judgment in the trial court, and all the costs of the cause, including the costs of the appeal.
Felts and Howell, JJ., concur. *333