194 P. 94 | Idaho | 1920
This case was submitted to the district court on stipulated facts to the effect that respondent entered into a conditional sale contract, in writing, with
It is provided in the contract: “If any of my or our indebtedness shall become due and remain unpaid in whole or in part, .... the full amount unpaid thereunder, including any notes given, shall become due and payable forthwith, and you or your assigns may, without any previous notice or demand of performance, and without legal process enter any premises where said property may be found and take possession thereof, after which you may, at your option, make such disposition of said property as you" shall deem fit, and all payments made by me or us
Judgment was entered awarding possession of the automobile to plaintiff, from which defendant appealed.
The portion of the act of March 15, 1917, referred to in the stipulation, and relied on by appellant, is now C. S., sec. 2646, which provides:
“Any .... automobile .... used within the state of Idaho with the knowledge of the owner or owners thereof for the purpose of transporting intoxicating liquor in violation of any of the provisions of the laws of Idaho relative to intoxicating liquors shall, upon the arrest of any person found using the same in the manner hereinbefore described, be seized by the officer making the arrest, and upon the conviction of any such person or persons the same shall be declared confiscated by the sheriff of the county in which such conviction is had, and upon the final determination of the case shall be sold by the sheriff at publie sale to the highest bidder.”
The language of the law limits its operation to property used “with the knowledge of the owner or owners thereof It follows that the unlawful use of an automobile, without the knowledge of its owner, to transport intoxicating liquor does not forfeit his right to claim and recover possession of it, nor render it subject to confiscation. (State v. Davis (Utah), 184 Pac. 161; Hoover v. People (Colo.), 187 Pac. 531; One Hudson Super-Six Automobile v. State, 77 Okl.
Appellant insists that even if the intefest of respondent was not subject to forfeiture, that of Muir was, and the' trial court was in error in its failure to so decide. This question cannot arise in this case because this action is replevin, wherein the right to possession of the automobile is alone in issue, and, at the time of its commencement, Muir was in default in Ms payments, and the right to retake possession of the property had accrued to respondent.
In the conditional sale contract the ownership of the automobile was reserved in respondent. It never passed to Muir, and the conditions of the agreement not having been conformed to by the latter, tbe former had a right to take possession of it wherever it might be found- Conditional sales, like other contracts, are to be construed according ,to the intent of the parties as disclosed by the terms employed, when they are not ambiguous. (Pease v. Teller Corporation, 22 Ida. 807, 128 Pac. 981; Miller-Cahoon Co. v. Lawrence, 31 Ida. 704, 176 Pac. 704; Wright v. Horton, 32 Ida. 516, 185 Pac. 555; Berlin Machine Works v. Dehlbom Lumber Co., 32 Ida. 566, 186 Pac. 513.)
The judgment is affirmed. Costs are awarded to respondent.