Standring v. Gordon

BELT, J. When this suit was instituted plaintiff procured an ex parte order appointing Frank W. Venable, his partner, receiver of the defendant Red Star Stage Company to take charge of its terminal offices and otherwise manage and conduct the business. An injunction order, without bond, was issued prevenJmg defendants from interfering in any manner with the management of this property by the receiver. Appellants, with much reason, complain of the action of the trial court in this regard, but since such proceedings, in our opinion, are foreign to the issues of this case, we pass without further comment. There is.no merit in the contention of defendant Wm. Gordon that he was induced to purchase this automobile by reason of alleged fraudulent representations of plaintiff. After having had possession of the machine for about one and one-half years and after having driven it approximately 100,000 miles in the transportation of passengers, the charge of fraud does not sound well. Defendant Gordon does not seek to recover damages; and, if he desired to rescind the contract on the ground of fraud, he should *344 have done so within a reasonable length of time after discovering that he had been defrauded. Citation of authorities is not deemed necessary. We agree with appellants that at the time of the execution of the contract plaintiff did not have any “rights to the stage run between Pendleton and Baker City, Oregon,” which he purported to sell. On cross-examination, in answer to the question: “State whether or not on the first day of June, 1923, or at any other time, you have ever owned or possessed any rights to any stage run between Pendleton and Baker, Oregon, or between La Grande and Baker, Oregon,” plaintiff replied: “No, I never owned or possessed any rights in the stage run between Pendleton and Baker, Oregon, or between La Grande and Baker, except that defendant Gordon gave me the run which he owned as security and the run and time schedules which this car immediately created when she went on that run.” Notwithstanding that plaintiff in the contract purports to sell the stage run in question, he testified as' follows, referring to an alleged conversation with defendant ¥m. Gordon: “He told me that he and Mosher were putting these cars on between Pendleton and Baker, Oregon, and that he had the run and that he would give me that run as security for the payment of the balance due on this car which he took in a conditional sale contract. He told me that if he didn’t pay for that car I would get the run and the car. Since then he has incorporated his company and tried to beat me out of the run in that manner.” It is difficult to understand how plaintiff could sell this “stage run” and yet receive it as security for payment of the purchase price of the automobile. If the contract did not express the real intentions of the *345 parties in reference to this matter, proper allegations seeking reformation of the' contract should have been made. On this phase of the case there is a fatal variance between the allegations of the complaint and the proof, and we therefore eliminate from further consideration that portion of the contract pertaining to the alleged sale of the “stage run.” The vital question is the determination of the rights of the parties to the contract upon default in payment. There are various forms of conditional sales agreements and each case cited must be considered in the light of the particular wording of the contract involved. The contract in the instant cause is unlike that considered in McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33), International Harvester Co. v. Bauer, 82 Or. 686 (162 Pac. 856), and Manley Auto Co. v. Jackson, 115 Or. 396 (237 Pac. 982). In this contract, the vendor, upon default in payment, had the option to terminate it, retake possession of the automobile, and retain payments made. The vendee, in such event, was relieved of any further obligations, as the forfeited payments constituted full satisfaction of any claims arising out of the contract, unless the property when restored was “seriously injured or impaired in value,” which is not contended. Plaintiff alleges, although he exercised his option to terminate the contract and demanded possession of the property in question, defendants refused to deliver it to him. Defendants insist the “stage line run” is not involved herein and that the automobile was delivered to plaintiff’s agent at the “Elite Garage” in Portland, Oregon, November 1, 1924, and that plaintiff was so notified by letter. The evidence is meager concerning the authority of the agent to accept such delivery, but a letter written by plain *346 tiff to Herman Mosher, dated February 9, 1925, wherein he offered to sell the automobile and “stage run” to him for $3,500 and made reference to the “bus stored in the Elite Garage in Portland,” tends strongly to the conclusion that plaintiff recognized such delivery and was dealing with the automobile as his property. If defendants refused to deliver possession of the automobile, plaintiff could have obtained complete relief by an action in replevin. Under the terms of this contract and in the light of the evidence, we fail to see any ground upon which to invoke the aid of equity. Assuming that defendant Gordon did not deliver the car, it appears that plaintiff has possession of it as a result of the foreclosure proceedings instituted. If a foreclosure sale was had the plaintiff would be entitled to the proceeds, but since the vendee did not agree to pay the balance no further relief could be obtained: International Harvester Co. v. Bauer, supra. When plaintiff took possession of the car, either by delivery by defendant Gordon or by levying upon it, the contract terminated and the vendee was relieved of any claims arising thereunder. In other words, plaintiff could have obtained as much relief in an action to replevin the property as he could in a suit to foreclose the contract. The payments were forfeited and there were no equities to foreclose. Result: plaintiff owns the automobile, the payments are forfeited, and defendant Gordon is not further obligated. The decree of the Circuit Court is reversed and defendants are entitled to costs and disbursements. Reversed. Costs Taxed. Rehearing Denied.