Guy v. . Bullard

Allek-, J. A contract very much, like the one before us was considered and construed in Puffer v. Lucas, 112 N. C., 377, and it was then held that contracts of this character are contracts of conditional sale, and that upon the payment of the purchase price the title to the property vests in the vendee. This case has been affirmed several times, and notably in the case of Hamilton v. Highlands, 141 N. C., 280. In this last case the plaintiff entered into a written contract with the defendant, which was called a lease, to hire to the use of the plaintiff for nineteen months a piano, etc., and to pay $50 cash and as rent $15 monthly, with further provision that if the defendant paid the installments of rent as they fell due he should have the right to purchase the piano for the total amount of the installments, in which case all sums paid as rent should be deducted from the purchase price, and the Court, after discussing the general effect of the contract, says: “It follows that the courts, ■ in determining whether or not a contract is one of bailment or one of sale, with an attempt to retain a lien for the price, in effect a mortgage, do not consider what description the parties have given to it, but what is its essential character. It was a mere subterfuge to call this transaction a lease, and the application of that term to it in the written agreement of the parties does not in law change its real meaning. A contract like the one upon which this suit was brought has been held by a very large majority of the courts of this country to be, in substance, a conditional sale, although in the form of a lease (and so called) or of a bailment for use, with an option to purchase.” Numerous authorities are cited and discussed in support of the com elusion that the contract was one of conditional sale and that upon failure to pay. the entire debt that the defendant was entitled to have the property sold and after applying enough of the proceeds to pay the balance of the debt to have any surplus paid to him. The construction put upon the contract by the parties is entitled to consideration in determining its true meaning, but they cannot, by giving a name to it, change its legal effect. These authorities are conclusive against the plaintiff’s contention that the contract is one of lease and not of sale, nor can we sustain the position that the contract was not assignable. The general rule is that any claim or demand can be transferred, and this contract does not come within any of the exceptions in Petty v. *231 Rosseau, 94 N. C., 363, nor does it in express terms or by fair intendment' import reliance on tbe character, skill or personal qualities of the vendee for its performance, a class of contracts which cannot be assigned (R. R. v. R. R., 147 N. C., 376), but if nonassignable it appears here from the findings in the judgment that the plaintiff has consented to the assignment by accepting a part of the purchase money from the assignee and by cashing one of the checks after the judgment was rendered and depositing it as security for the costs on the appeal. It is found as a fact in the judgment that Bullard paid to the plaintiff $151.18 before the contract was assigned to Owen; that the plaintiff had, when the judgment was rendered, checks given to him by Owen amounting to $306.71, the two amounts aggregating $457.89, which deducted from $750, the full amount of the purchase money, which has been paid to the plaintiff, leaves $292.11 paid by the defendant Owen after the assignment of the contract and accepted by the plaintiff. He is not therefore in a position to say that the contract has not been legally assigned to the defendant. Nor can the plaintiff avail himself of the provision in the contract giving him the right to repossess the property upon failure to operate the mill for a period of thirty days because, instead of exercising this privilege, he permitted the defendant to continue in the use and operation of the mill and accepted the balance of the purchase money. We find no error in the judgment. Affirmed.