Paine v. Meier & Frank Co.

BELT, J. This is an action for money had and received. In 1924 the defendant Meier & Prank Company sold to Ross Enyart and Bessie L. Enyart, under a conditional sales contract, certain furniture and fixtures amounting to $23,959.88. This property was to be used in a hotel which the purchasers had leased from *42 Herman Winters and D. E. Steele. $4,200 was paid upon execution of the contract, the balance of the purchase price being payable in monthly installments of $400. Time was made the essence of the contract. The Enyarts operated the hotel until 1927 when they sold and assigned their interests in the lease and the contract to the plaintiffs. The plaintiffs continued to operate the hotel but were unable to pay the rentals, the amount due the Enyarts, or the installments under the conditional sales contract. The Enyarts, who were still liable under the lease and the conditional sales contract, caused a receiver to be appointed on June 28, 1930. Such officer remained in possession of the property until July 17, 1930, when the receivership was terminated for the reason that the order of appointment was void. Considering the plaintiffs in default, the Meier & Frank Company elected to declare a forfeiture and resold the furniture and fixtures in question to Winters and Steele, the owners of the hotel property. Plaintiffs introduced evidence tending to show that the sale to Winters and Steele was made on July 16, 1930, the day before the dismissal of the receiver and before Meier & Frank Company had repossessed the furniture. The defendant contended that the sale was made after the dismissal of the receiver and after it had repossessed the furniture. Such issue was submitted to the jury. Payments made under the conditional sales contract amounted, principal and interest, to $19,342.42. The monthly payments, however, were not made at the times specified in the contract. The defendant followed a liberal credit policy and did not insist upon strict performance as to time of payments. *43 It is contended by plaintiffs that, since tbe defendant failed to give reasonable notice of its intention to insist upon compliance with the time essence clause of the contract and resold the furniture to Winters and Steele before having a right to declare a forfeiture, they may treat the contract as mutually rescinded and recover the amount paid thereunder. Defendant denied any breach of the contract but also relied upon the alternative plea that, if it be adjudged that the contract was mutually rescinded, the defendant should be allowed, as an offset against the demand of plaintiffs, the reasonable annual rental value and depreciation of the personal property in question during the time it was in the possession of plaintiffs and their assignors. It is alleged that the reasonable annual rental value and depreciation of the furniture and fixtures is equivalent to 15 per cent of the cost thereof. The cause was submitted to a jury and a verdict returned in favor of plaintiffs for $10,142.42. Defendant appeals. It is urged by appellant that it was entitled to a directed verdict since the undisputed testimony shows that the reasonable rental value and depreciation of the property during the time it was in the possession of the plaintiffs and the Enyarts exceeds the amount of the payments. Exception was taken to the following instruction: “If you find plaintiffs are entitled to recover under the evidence and instructions the court has given you, then you may credit against any amount that you may find the plaintiff to be entitled to, the reasonable value, if any, of the use of the furniture, while in the possession of plaintiffs and their predecessors, Enyarts; ’ ’ *44 The sole objection to the above instruction pertains to the italicized words “if any”. We agree with counsel for appellant that such words should have been eliminated, but the error was undoubtedly cured by the verdict of the jury. It appears affirmatively from the record that the jury did allow defendant credit for the reasonable rental and depreciation of the furniture. If the jury had not allowed any such credit, the defendant would be in a position to complain. The jury was not bound to accept as conclusive the uncontradicted opinion of the witnesses on behalf of defendant that the reasonable value of the use and depreciation of the furniture was equal to 15 per cent per annum of the cost thereof. The probative weight to be accorded to the estimates of witnesses as to rental value and depreciation was a matter entirely for the jury. The jury should take into consideration the opinion of such witnesses together with all the other facts and circumstances of the case and accord to it such weight as sound judgment dictates: 22 C. J. 595; 11 R. C. L. 637. Opinion evidence is advisory but not conclusive: Littlepage v. Security Savings & Trust Co., 137 Or. 559 (3 P. (2d) 752), and authorities therein cited. Also see Officer v. Cummings, 127 Or. 320 (272 P. 273). Error is assigned because the court, over the objection of defendant, admitted in evidence the original ledger sheets showing the Enyart-Paine account with Meier & Frank Company and excluded from consideration of the jury certain notations made on the back of such ledger sheets relative to the account. There was no real controversy relative to the amount of the payments nor the dates upon which the same were made. It is clearly disclosed from an examination of the matter on the back of the ledger cards that it was not rele *45 vant nor material to any issue in the case. The exclusion of such matter certainly did not operate to the prejudice of the defendant. The notations on the back of the cards did not explain nor modify any of the entries in reference to the account. Some of these notations pertained to telephone conversations had by clerks of the defendant with some third person and would, of course, be purely hearsay and not binding-on the plaintiff. There is nothing on the back of the ledger cards which would indicate an intention to declare a forfeiture or reinstate the time essence clause of the contract. Furthermore, the offer in evidence by defendant of the matter on the back of the cards was general and not limited to any particular part thereof. Certainly some of the hearsay statements and self-serving declarations written on these cards, were inadmissible. Under this state of the record, the court, without doubt was right in rejecting the entire offer. As stated in Samuels v. Mack-International Motor Truck Corporation, 128 Or. 600 ( 275 P. 596): “It is settled in this jurisdiction that if the conditional vendor wrongfully rescinds the contract of purchase, the buyer may elect to assent to such rescission and recover payments made in action for money had and received: Massey v. Becker, 90 Or. 461 (176 P. 425) and cases therein cited. A wrongful rescission was had if the defendant, after having waived strict performance of the contract as to payments, declared a forfeiture and repossessed the trucks without giving the plaintiff definite and reasonable notice that unless amount due on contract was paid it would so act. A waiver is the relinquishment of a known right and may be established expressly or by implication. The right to declare a forfeiture for failure to comply strictly with the contract in making these monthly instalment payments is for the benefit of the seller and unquestionably may be waived by him.” *46 Also see Graham v. Merchant, 43 Or. 294 (72 P. 1088); Gray v. Pelton, 67 Or. 239 (135 P. 755); Burdick v. Tum-A-Lum Lumber Co., 91 Or. 417 (179 P. 245); Epplett v. Empire Inv. Co., Inc., 99 Or. 533 (194 P. 461, 700); Olson v. Pixler, et ux., 138 Or. 250 (6 P. (2d) 23). Pacific Finance Corporation v. Ellithorpe, 134 Or. 601 (280 P. 658, 289 P. 1058), is not in conflict with the rule above announced and the numerous authorities cited in support thereof. In the Pacific Finance Corporation case the contract contained the following provision: ' “Time and each of its terms, covenants and conditions are hereby declared to be of the essence of this contract, and acceptance by the Seller of any payment hereunder after the same is due shall not constitute a waiver by him of this or any other provision of this contract, * * * and this contract may not be enlarged, modified or altered except by endorsement hereon, signed by the parties hereto. ’ ’ It certainly would be within the province of the parties to stipulate that acceptance of delayed payments should not be considered as a waiver of strict performance of the time essence provision of the contract, "but no such stipulation was contained in the contract in the instant case. This rule is recognized in Estrich on Instalment Sales, § 310, wherein it is stated: “A provision that time is the essence of the contract is not waived by the acceptance of overdue instalments, especially where the contract so provides.” The request of the respondent that defendant be penalized for an alleged frivolous appeal is denied. Finding no substantial error in the record it follows that the judgment is affirmed.