George J. Birkel Co. v. Nast

SHAW, J. Action to recover upon a contract for the conditional sale of a piano made by plaintiff to defendant. Judg *653 ment went for defendant. Plaintiff moved for a new trial, which was denied, and it appeals from the order denying its motion, as well as from the judgment. At the time of the delivery of the piano to defendant she executed a contract whereby she agreed to pay therefor to plaintiff the sum of six hundred dollars, as follows: Ten dollars upon the signing of the contract, and at least ten dollars on the eighth day of each month thereafter, together with interest, until the whole sum was paid, and that until said sum and interest should be fully paid the piano should remain the property of plaintiff, but upon full payment title thereto should vest in defendant; in addition to which, the contract contained the following clause: “I also hereby agree that if I fail to pay any of said monthly installments when due, or to fulfill and keep any other of the aforesaid conditions, thereupon George J. Birkel Company may enforce payment of all of said sum of $600 then unpaid and interest' thereon; or, at its option, George J. Birkel Company may retake possession of said piano without legal process, and for that purpose may enter any premises where the same may be, and thereupon without further notice terminate this contract.” Defendant made default in the monthly payments, which by the terms of the contract she was required to pay; whereupon plaintiff brought this action for the unpaid balance of principal and interest, and caused to be issued in said suit a writ of attachment under and by virtue of which the sheriff levied upon and took into his possession the piano, which he stored in a warehouse owned and controlled by plaintiff. Upon these facts, the court found that title to the piano did not vest in the defendant by reason of the action brought by plaintiff, in the exercise of its option, to recover the purchase money which defendant had agreed to pay; that the taking of the piano by the sheriff under the writ of attachment and storing it in plaintiff’s warehouse was a recaption thereof by plaintiff; that under the terms of the contract title could not vest in defendant without her consent, and that she never assented thereto. These findings, consisting of a jumble of both law and fact, cannot be sustained. The provision of the contract to the effect that the title to the piano should remain in plaintiff until payment of the full purchase price thereof was inserted for the purpose of securing such payment, and therefore -was *654 for the benefit alone of the vendor. Being for its sole benefit, it had the right to waive the same. (Shepard v. Mills, 173 Ill. 223, [50 N. E. 709].) Plaintiff could not retake the piano and also sue for the price thereof. (Muncy v. Brain, 158 Cal. 300, [110 Pac. 945].) Therefore, when it brought this action for the purchase money it waived its right to retake possession and elected to enforce payment. Having exercised its option to sue, it was debarred from all right to recover the property under a claim that title had not passed to defendant. (Holt Mfg. Co. v. Ewing, 109 Cal. 353, [42 Pac. 435]; Park, etc. Co. v. White River Lumber Co., 101 Cal. 37, [35 Pac. 442].) The legal effect of such election was, immediately upon the filing of the complaint, to transfer to and vest in defendant title to the piano as completely as though defendant had made full payment therefor. (Elsom v. Moore, 11 Cal. App. 377, [105 Pac. 271]; Shepard v. Mills, 173 Ill. 223, [50 N. E. 709].) The title having passed to and become vested in defendant by reason of plaintiff’s election to exercise its option to enforce payment, it was not only subject to an execution which might be issued upon a judgment obtained in the action, but likewise and for the same reason subject to levy under' a writ of attachment issued in the suit. The act of the sheriff in taking possession of the piano was in no sense a recaption by plaintiff under the terms of the contract, which authorized the taking without legal process. Until a sale thereof under execution issued upon a judgment obtained, in the action, the property belonged to defendant subject to the' levy of the writ, possession of which she might obtain, either upon payment, or the giving of a bond for the release thereof. The act of the sheriff in storing it in plaintiff’s warehouse was immaterial, so far as it affected plaintiff’s rights in the matter. Defendant in her answer set up certain facts as a separate defense. No findings, however, were made by the court upon the issues so tendered. The judgment and order are reversed. Allen, P. J., and James, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 15, 1913.