Standard Steam Laundry v. Dole

22 Utah 311 | Utah | 1900

A statement of the case as above having been made,

Bartch, C. J.,

delivered the opinion of the court.

The first question to be determined is whether this is a special action under the statute to redeem real estate after foreclosure sale or a general equitable action to determine all matters in controversy between the parties.

The appellant contends that it is a special statutory proceeding to redeem its real estate from the mortgage sale, and that the only burdens which can be imposed upon the judgment debtor, or his successor in interest, as a condition precedent to his right to redeem, are the repayment to the purchaser of the amount of the purchase price with interest, and any tax or assessment, paid after the purchase, with interest thereon.

This contention is warranted neither by the pleadings nor by the theory upon which the case was tried. Undoubtedly a judgment debtor, or his successor in interest, may institute a special proceeding, as provided in Section 3267, K.: Si, to redeem real estate sold under a mortgage, and to compel an accounting of the rents and profits of such real estate, and if this be done the plaintiff has the right to insist that the trial be limited to the special, purpose for which the suit was brought. In this case, however, the complainant did not see fit to confine his complaint to the terms of the statute by alleging a cause of action for. the redemption of real estate sold under the mortgage, and an accounting for the rents and profits thereof, but it went further and set up a cause, and made a demand for an accounting for rents, issues and profits of personal property not sold with the real estate, and also asked for general relief. Having thus brought a suit to determine the whole controversy between the parties, the defendant had the right to file his counterclaim which grew out of transactions relating to the same property. This right the plaintiff must have recognized, for, it seems, it made no attempt to strike out the counterclaim, but instead filed a replication admitting some things, denying others, and making a similar demand to that in the complaint, and then without ■ objection, as appears, permitted the cause to be tried upon the theory that all matters in controversy, between the parties, relating to the laundry business, should be determined. It was therefore proper for the court to decide all the issues raised in the pleadings and tried before it, and the appellant is in no position to complain that burdens were thus imposed upon it, in its efforts to redeem its property, which were not contemplated by the statute.

Nor, under these pleadings, did the court err in admitting the notes of O. A. and E. T. Wooley given to the Troy Laundry Machinery Co., Limited, for the purchase price of the laundry machinery, in evidence. Such evidence, under the general accounting, for the rents, issues and profits of property not sold under the Mulvey mortgage, but used in the laundry business, demanded in the complaint, and under the issue raised in the counterclaim, was proper. Nor under the general character of the pleadings and the evidence did- the court err in finding that the plaintiff leased the laundry property to the defendant.

The appellant also insists that the court erred in finding that the defendant, upon payment of the Wooley notes and taking an assignment of them to himself, became the owner and holder thereof, and was subrogated to the rights of the payee. We are of the opinion that the character of the pleadings and evidence was such as to justify the court in making this finding. Counsel for the appellant, however, maintains that it is doubtful whether the doctrine of conditional sale exists in Utah. We think the validity of such a sale is no longer an open question in this state.

A conditional sale of personal property, it being stipulated in good faith that the title is not to pass until full payment of the purchase price by the vendee, is valid and binds the vendee, his creditors and vendees. There is no general principle of law which prevents an honest intention of the parties, that the vendee shall not have the ownership of the chattels until he has paid for them in full, from being effectual. In the absence of fraud, therefore, such a sale will be upheld and effect given the condition imposed. Lippincott & Co. v. Rich, 19 Utah, 140; Hirsch & Co. v. Steele, 10 Utah, 19; Russell & Co. v. Harkness, 4 Utah, 197; Harkness v. Russell, 118 U. S. 663.

The conditional sale of the machinery being valid, and the respondent, in order to save the property from being retaken by the vendor, having paid the balance of the purchase price, had the_ right to have the notes assigned to him. By such payment and assignment he became the owner and holder and was subrogated to the rights of the vendor. “The vendor may assign his claim to the property sold conditionally, and his assignee acquires the same rights therein as the vendor had, and the vendor in such case loses all his interest in the property.” 6 Am. & Eng. Ency. Law, (2d ed.) 485; Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608; W. W. Kimball Co. v. Mellon, 80 Wis. 133; Myres v. Yaple, 60 Mich. 339; Rodgers v. Bachman, 109 Cal. 552.

Nor did the taking of the contract of April 17, 1894, between the defendant Dole and the Wooleys and the Troy Laundry Machinery Co., wherein Dole for himself assured and guaranteed the payment of the notes, divest the vendor, or its assignee of the right to insist on the terms of the conditional sale. Under that contract, which was made to secure an extension of time for payment of the debt, the Wooleys were not released. They were still bound by their contract to pay the notes. The contract amounted simply to an additional security and its taking was not a waiver of the rights of the vendor under the contract of sale, and did not destroy those rights or the lien. 6 Am. & Eng. Ency. Law (2d ed.), 477; Pettyplace v. Manufacturing Co., 103 Mich. 155; Cherry v. Arthur, 5 Wash. 787.

Nor did the court commit an error in finding that the contx-act of April 17, 1894, formed no part of the consideration for the purchase of the 600 shares of the capital stock of the plaintiff corporation, by the respondent from Hunter. There is no provision that Dole became a guarantor in consideration of the purchase of the stock. Hunter, the vendor, was not a party to that contract, and the contract of March 26, 1894, between the respondent and Hunter, shows the real and an entirely different consideration for the stock.

So, under the pleadings and the evidence, the court properly decided in favor of the l’espondent, as to the several sums paid by him for taxes, and for expenditures ' in repairs upon the laundry property.

Other points have been presented in the record, and, although they have not escaped our notice, yet we do not deem a discussion of them important. We find no reversible error in the record.

The judgment is affirmed, with costs.

Miner, J. and Baskin, J. concur.