O'Rourke v. . Hadcock

Follett, Ch. J. The referee by his decision, in effect, finds that the plaintiff elected to affirm the contract of sale and collect the amount due upon it. The plaintiff’s conduct was *549 entirely consistent with this theory, and utterly inconsistent with the plaintiff’s present theory, that he disaffirmed the contract of sale and relied upon his title reserved by the contract. The plaintiff advertised that, by virtue of the contract and chattel mortgage, he would sell by public auction, July 7,1876, all of the property described in these instruments, and again, that he would sell the property by public auction by virtue of the contract and mortgage, July 23, 1876, and on the day last named he did sell all of the property (he having acquired possession of it through this action), except the mules, and their harnesses. The plaintiff called Mr. Davis as a witness, who testified that he attended the sale as attorney for the plaintiff and that the plaintiff was .present. He .also testified :■ “ Both boats were sold within half an hour; the ‘ Pettibone ’ was sold first; I recall it because the ‘Pettibone’ was the original security, and the ‘ Kittinger ’ was sort of a collateral; after the sale of the ‘ Pettibone,’ I recall that I asked Mr. O’Rourke to give me the amount of his claim, and Mr. Anthony, who had kept the books for Mr. O’Rourke, gave me the amount of claim, a statement; then I directed, the sale of the ‘ Kittinger ’ upon the information that the ‘ Pettibone ’ had not sold for enough to satisfy the claim; I gave that direction.” It is apparent that the plaintiff did not avail himself of his right to rescind the sale and repossess himself of the property described in the contract by virtue of his legal title, in case any part of the price was unpaid; but he elected to collect the sum which he claimed to be due, and he thereby affirmed the sale. Had he disaffirmed the sale he could not have legally done more than to retake the property sold. But, instead of doing only this, he enforced the chattel mortgage and the contract for the avowed purpose of collecting his debt., It is well settled that when a mortgagee holding a mortgage upon several chattels continues to sell after he has realized enough to satisfy the debt and costs he becomes a trespasser. So when several distinct chattels are sold upon condition that the title shall not pass from the vendor to the vendee until the agreed price is paid, and the vendor, in affirmance of the con *550 tract, seizes the chattels for the avowed purpose of selling them and collecting the amount due upon the contract, he has no right to seize and sell or seize and retain more than is sufficient to satisfy his demand and expenses. The plaintiff asserted in his notice of sale that he would sell the mules and their harnesses to satisfy his claim ; and, though the title to them was not reserved by the contract, we think he is now estopped from saying that his act was not by virtue of the contract and for the purpose of collecting his debt, but was wholly wrongful. But it is said that the case does not show that the mules and their harnesses were sold. The only evidence upon this subject was given by Davis, who testified: “ The mules were not sold at this time (July 28, 1876), nor were the harnesses.” The trial of this case was not concluded until March 3, 1884, more than seven years after the plaintiff took the mules and their harnesses. He was examined but did not explain what he had done with this property; and the evidence justified the referee in finding either that the property had been sold or its condition so changed that he was liable to account for its value by way of application as a payment upon the very debt which he sought to collect by taking the property, and by this action, arising out of the very contract, by virtue of which they were taken. When an executory contract for the sale of chattels provides that title shall not pass until the agreed price is fully paid, which is payable in installments, and the vendor permits the vendee to retain possession and make other payments after the whole contract-price is due, the vendor cannot seize the property and terminate the contract for non-payment until he has demanded payment of the vendee. (Hutchings v. Munger, 41 N. Y. 155.) There is no evidence in this case that the plaintiff demanded payment of the defendant. Davis testified that he demanded the boats and property covered by “ these mortgages,” which the defendant denied. The referee did not find whether possession of the boats and their furniture was demanded, but he did find that the plaintiff took the mules and their harnesses without a previous demand. *551 The judgment-roll in the first action between these parties was evidence of the amount due from the defendant to the plaintiff. This amount was the subject litigated in the action. The record shows that the judgment was rendered on the merits, and so it became conclusive between the parties. (Code of OivilPro. § 1209.)' The judgment should be affirmed, with costs.