207 P. 260 | Cal. Ct. App. | 1922
Action to recover possession of personal property, or the reasonable value thereof in case delivery of the property cannot be had, together with damages for the *330 unlawful detention of the property. The plaintiff appeals from the judgment entered in favor of defendant.
[1] On the eighth day of June, 1918, pursuant to the terms of a contract of conditional sale, plaintiff delivered to the defendant a certain truck described in the contract. The purchaser paid five hundred dollars, and agreed to pay the further sum of two hundred dollars on the fifth day of July, 1918. By the terms of the contract, the purchaser agreed "that if he fails to make any of the above payments when due, or within ten days thereafter, or violates any of the terms of this contract, then the seller at his option and without notice may elect to declare the whole purchase price due and payable, or the seller may declare this agreement null and void, and in that event the seller may take possession of said automobile, and the purchaser agrees to forfeit all payments made thereon and also forfeit all right and interest in said automobile, time being of the essence of this agreement. . . . The second party acquires no interest in or title to said property until all payments as agreed shall be made; when the first party agrees to execute to the second party a bill of sale to said property. . . . Time is expressly made of the essence of this contract."
Nothing was paid by the purchaser on account of this contract after the initial payment. In August, 1919, plaintiff made demand on the defendant for possession of the truck, but the defendant refused to comply with that demand. The fact was that prior to that time the defendant had sold and delivered the truck to a third party; since which time it never has been in possession of or under control of the defendant. By reason of these proved facts it Was found by the court (contrary to the allegations of the complaint) that the defendant did not have possession of the truck either at the time of commencement of this action or thereafter. Counsel for appellant and counsel for respondent seem to agree that the judgment in favor of defendant rests upon the proposition that the plaintiff cannot maintain this action because the personal property sought to be recovered was not in defendant's possession at the time of commencement of the action. This presents the question upon which the appeal may be determined.
The principal decisions relied upon by respondent areRichards v. Morey,
It should be noted that in the cases mentioned above the cause of action had its origin in a wrongful taking, or tortious seizure of property by the defendant. InFaulkner v. First Nat. Bank,
In New Liverpool etc. Co. v. Western etc. Co.,
[2] Finding III states "That it is not true that the plaintiff herein subsequent to the fifteenth day of July, 1918, *333 or at any other time or at all declared said agreement null and void or null or void, or became at such time entitled to the possession of said automobile; that it is not true that at all the times since this plaintiff has been and now is, or has been or now is, the owner and entitled or the owner or entitled to the possession of said automobile." Since the defendant was in default by reason of nonpayment of the amount due from him under the contract, and also by reason of his transfer of the property contrary to the terms of the contract, the plaintiff became entitled to possession of the property, upon the exercise of his right to "declare this agreement null and void." Such declaration need not have been made in the very terms of the contract. When the plaintiff demanded possession and (upon defendant's refusal to comply with that demand) commenced this action to recover the property or its value, he thereby elected to put an end to the contract and waive his claim for the unpaid balance of the purchase price as definitely as if he had used the formula, "I hereby declare said contract null and void."
The judgment is reversed.
Shaw, J., and James, J., concurred.