107 P. 402 | Idaho | 1910
— This action is in claim and delivery. The complaint is' in the usual form for such actions. The answer denied the ownership of the plaintiff and his right to the possession of the property, and also set np a separate and independent defense. The case was tried on the issues thus made, and judgment was entered in favor of the plaintiff. Defendant moved for a new trial, and has appealed from the judgment and order denying his motion.
T’he transaction out of which this action has arisen is substantially as follows: On January 1, 1901, George IT. Stewart, John M. Haines and Lewis E. Newland, whom we shall hereafter designate as “Newland & Co.,” entered into a contract with the appellant, Eobert Noble, whereby New-land & Co. agreed to purchase and Noble agreed t'o sell 10,000, head of sheep. The material and essential part of the contract, and that upon which the decision of this case must eventually turn, is as follows:
“That to the end of perfecting said sale, the said sheep have been delivered into the possession of the said parties of the second part, but that title is to remain absolutely in the party of the first part of all of said sheep, together with the increase and. the wool, until fully paid for. That the payments for the same are as follows: Ten Thousand Dollars ($10,000.00) on or before Jan. 1, 1902, Fifteen Thousand Dollars ($15,000) on or before Jan. 1, 1903, and Fifteen Thousand Dollars ($15,000) on or before Jan. 1, 1904, each and all of said payments bearing interest at the rate of eight per cent per annum from Jan. 1, 1901, said interest payable*691 annually; that immediately upon full payment for said sheep, the title of the same, together with all increase and the wool clip, is to pass to the parties of the second part and they are to become the sole owners thereof and to that end the party of the first part is to execute a bill of sale for the same to the said parties of the second part.
“It is further agreed and understood that the said parties of the second part are to care for and manage said sheep in a good husbandmanlike manner at their expense and that they are to have the authority and power to sell said sheep or any part of the same or the wool or the increase at a fair market value, but are to immediately apply all amounts realized from said sale upon the purchase price herein stipulated.
“It is further agreed and understood that in the case of failure upon, the part of the-parties of the second part to pay the amounts above specified at the time specified and in the manner specified, that they are to forfeit all right to purchase said sheep and the party of the first part shall be entitled to immediately take possession of said sheep and the increase and any clip of wool that may be on hand and any expenses incurred by parties of the second part or outlay shall be treated and considered as liquidated damages for all claims to be made by the party of the first part against the parties of the second part hereunder and this contract shall be at an end.”
Newland & Co. took possession of the sheep and carried on the business, paying Noble from time to time on the purchase price until they had paid an aggregate sum of about $26,000. They failed, however, to make the payments as they fell due, and it appears from the evidence of both Stewart and Haines that they each notified Noble on several occasions that they could not meet their payments, and that “if he wanted the sheep to come and get them.” He did not reclaim the sheep, however, nor did he take possession or demand possession of them until the happening of the event which precipitated the action in this case. About November 1, 1904, Newland & Co. sold to the respondent herein, Ed
It is claimed by the appellant that the contract of sale hereinbefore set forth and out of which this controversy arises is undisputably a conditional sale contract, and did not vest title to the sheep in Newland & Co. as vendees. This contention must be sustained. The contract entered into between Noble and Newland & Co. did not at the time vest the title to the property in the vendees. On the contrary, the title remained in the vendor. This is a well-established rule of law, and has been repeatedly recognized by this court. (Mark Means Transfer Co. v. Mackinzie, 9 Ida. 165, 73 Pac. 135; Barton v. Groseclose, 11 Ida. 227, 81 Pac. 623; Kester v. Schuldt, 11 Ida. 663, 85 Pac. 974; Harkness v. Russell, 118 U. S. 663, 7 Sup. Ct. 51, 30 L. ed. 285.) It is urged by the respondent, however, that the power conferred upon the vendees to sell any part of the property so modified the previous reservation of title in the vendor that the vendees could sell the property and give a good title, and that under this power the moment the vendees made a sale title passed to the purchasers through the agency conferred on the vendees to make a sale. The rule is so general that it needs no citation of authority that a contract or agreement must be construed as ' an entirety, and effect must be given, if possible, to every part of the agreement. Indeed, that is the whole tenor of the ease of Rodgers v. Bachman, 109 Cal. 552, 42 Pac. 448, cited and quoted from at length by appellant. So let us pursue the intent of this agreement. In the contract under consideration, it was stipulated in one paragraph that the “title is to remain absolutely in the party of the first part,” and immediately following that in the next paragraph it stipulates, “it is
The opinion of the court in the New Haven Wire Co. Cases, 57 Conn. 352, 18 Atl. 266, 5 L. R. A. 300, deals with the identical principle here involved, and subd. 5 of the syllabus to that case states the holding of the court as follows:
“The effect of a conditional sale and delivery of the property to the vendee with power to sell it as the property of the vendor and deliver the proceeds to him, is that, upon a sale by the vendee of the property, it ceases to be security to the vendor and the purchaser acquires a good title, and if the vendee does not pay to the vendor, but retains the proceeds of the sale and uses them, the vendee becomes a debtor to the vendor therefor, and the latter has no priority over other creditors.”
That was a case of a. sale of steel rods and wire where the title remained in the vendor with power of sale conferred on
“The legal effect of the conditional sale and delivery of rods to the vendee with power to sell them as the property of the vendors and deliver the proceeds to them, is that, upon such sale, the rods ceased to be security to the applicants, and inasmuch as the wire company did not pay over to them the identical proceeds of any sale, but retained the proceeds of all sales and mingled the money with and used it as its own, indistinguishably, it became their debtor, and they became its creditors, upon the same footing as all other creditors, without right of priority. After sale their security was only the fidelity of the wire company to its agreement to hold the proceeds of their rods apart and pay them over. ’ ’
The principle enunciated in this ease is sustained by the following authorities: Winchester Wagon Mfg. Co. v. Carman, 109 Ind. 31, 58 Am. Rep. 382, 9 N. E. 707; Bent Jenkins, 112 Ala. 485, 20 So. 655; Wilder Co. v. Wilson, 16 Lea (Tenn.), 548.
Appellant urges that upon a failure on the part of New-land & Co. to make payment, their rights under the contract were forfeited, and that they no longer had the right to make sales of any of the property; that their agency to sell ceased upon a forfeiture of their rights under the contract. The clause of the contract under which this contention is made provides “that in case of failure on the part of the parties of the second part to pay the amounts above specified at the time specified and in the manner specified, they are to forfeit all rights to purchase said sheep.And this contract shall be at an end.” In support of this contention, they cite Page on Contracts, see. 1160; Kirby v. Harrison, 2 Ohio St. 326, 59 Am. Dec. 677; Hicks v. Aylsworth, 13 R. I. 562; Slater v. Emerson, 60 U. S. 224, 15 L. ed. 626; Jennisons v. Leonard, 88 U. S. 302, 22 L. ed. 539. ^Without an analysis of the authorities cited, it is sufficient to say that they do not sustain the contention made as applied to the facts of this case. We recognize the rule as stated by Page on Contracts, that “at law the general rule is that time is of.
Newland & Co. came into possession of this property by .and with the consent of Noble, and their possession was therefore rightful and lawful. Such possession could not be converted into a wrongful and unlawful possession until a breach .of the contract and a demand made by the vendor for pos
In Kimball v. Farnum, 61 N. H. 348, the court was considering the right of a vendor to maintain the action of re-plevin for the possession of property contracted under conditional sale, and said:
“There was no unlawful taking of the property by the defendant, for he took possession of it by the consent of the* vendor, under an agreed right to take and use the property*697 and acquire title by payment within a year. There was no unlawful detention, if the defendant had the right of pos: session until the property was paid for. The vendor extended the time of payment, and made no demand for the property. ITe did not assert his right to take it, nor claim a forfeiture of the defendant’s right to retain the property and complete the payment. He afterward received money, and applied it upon the unpaid balance; and the finding' was warranted that the defendant was induced to make payment after the year expired, with an understanding that he still had the right of possession and to acquire full title by completing payment/and that the vendor was estopped from denying that right.”
Respondent acquired a good title to the property by virtue-of his purchase from Newland & Co., and the taking by appellant was therefore wrongful and without authority in fact or law. The judgment is affirmed, with costs in favor of respondent.