This was a replevin suit brought .by Seeley against Tischler to recover possession of a dental chair, table and bracket alleged to be worth $160. The prayer is for judgment for that amount with interest, for possession can not be obtained. The property was not taken in replevin. The answer of Tischler is a general denial.
It seems from this record that Se.eley did give the possession of this property to Searle, under a conditional contract whereby the property was to become Searle’s after the payment of an agreed price, the price to be paid in installments. That conditional contract was in writing, properly executed and verified and was filed in the proper place six minntes before the chattel mortgage which Tischler had taken on the same property was
Now, counsel for plaintiff in error claims that this judgment is erroneous because it appeared from the evidence that, at the time this action was commenced, Tisehler did not have possession of the property; but it nowhere appears in the record, as we think, that Seeley knew of that disposition of the property. The claim is further made that there was no tender made to Tisehler of any part of the amount that had been paid by Searle.
Counsel argues at length that an action in replevin, or an action in damages where the property is not taken in replevin, can not be maintained where, at the commencement of the action, the defendant did not have the actual possession of the property.
Now, Section 5827, Revised Statutes, provides that, if the property is not taken or is returned for want of the undertaking, the action may proceed as one for damages. The statute does not specify any particular reasons or instances in which the property is not taken, but it is general and unqualified that, if the property is not taken, the action may proceed as one for damages.
Some authorities have been cited in support of the claim of counsel for plaintiff in error, but, in Cobbey on Replevin, Section 66, we find this exception to the general rule:
“Whe|re the property was in defendant’s possession and wrongfully transferred by him shortly before the commencement of the action, or where the statute allows a replevin action to proceed as one for damages if the property is not taken, the rule is different. . In Michigan the action has been allowed to 'proceed, under their statute, even where the defendant pointed out part of the property named in the writ and plaintiff refused to take possession of it. ”
We think that McBrian v. Morrison,
Now, so far as Section 4155-3, Revised Statutes, and under that Section -2 is concerned, which provides that the vendor of property conditionally sold can not retake possession without repaying part of the price paid, that is, he must tender or refund the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no ease exceed fifty per cent, of the amount so paid, Tischler was not the purchaser of the property, but, assuming that he stood in the shoes of Searle, so far as the repaying of these sums is concerned, the Supreme Court in Weil v. State,
Another question is made, that this conditional sale- contract was not filed immediately after its execution and delivery. The statute does not provide when these conditional sale contracts faVia.11 be filed. The provision is that until filed they are void as against purchasers and mortgages in good faith, etc.
We think that this disposes of all the assignments of error, and, after reviewing the evidence and the charge of the court in the light of the statutes and decisions of the Supreme Court, we find no error in the record and the judgment is affirmed.