Seufert v. Simonton

Mr. Justice McBride delivered the opinion of the court. There is no bill of exceptions in this case, and the only matters presented arise upon the demurrer of the defendant corporation to plaintiff’s reply. 1. As will appear by the foregoing statement, the reply alleges that the plaintiff derives title to the property by a bill of sale from F. A. Seufert, who trans [427] ferred the property to plaintiff subject to a conditional contract of sale of the same to Simonton, by which contract Simonton had agreed to pay for the same the sum of $1,900, as evidenced by a promissory note, payable in installments of $100 per month, with interest annually at 7 per cent; that it was stipulated in the contract of sale between F. A. Seufert and Simonton that Seufert was to remain the owner of the property until the note was paid according to its terms, and that if Simonton should fail to pay the interest, or any monthly installment provided for, F. A. Seufert might immediately take possession of the property and declare the contract canceled; and that the $1,900 note had been assigned to plaintiff, and that Simonton had defaulted. Whereupon the plaintiff had declared the contract rescinded and demanded a return of the property. The bill of sale and assignment of the Simonton note to plaintiff by F. A. Seufert carried with them the conditional contract: Cade v. Jenkins, 88 Ga. 791 (15 S. E. 292); Townsend v. Southern Product Co., 127 Ga. 342 (56 S. E. 436, 119 Am. St. Rep. 340). This being the case, all the interest or ownership of the property which F. A. Seufert had at the time of the indorsement of the note passed to plaintiff. 2, 3. The reply, being consistent with the complaint, does not constitute a departure, but shows an absolute title in plaintiff at the commencement of the action. It simply alleges in detail the sources of plaintiff’s title, which, as alleged, consists in: (a) The original ownership of the property by F. A. Seufert, encumbered by a conditional contract of sale; (b) an assignment of Simonton’s note and a bill of sale to plaintiff, whereby he succeeded to all the rights of F. A. Seufert in the property, including the right to demand performance by Simonton of the terms of his contract; [428] and (c) a forfeiture by Simonton of his right to retain the property by reason of his failure to pay the installments as stipulated. All these facts could have been shown without alleging them in the reply as constituting the links in plaintiff’s chain of title, and if supported by the evidence, as we must assume they were, they established an absolute title in plaintiff: Mayes v. Stephens, 38 Or. 512 (63 Pac. 760, 64 Pac. 319). The objection that the complaint does not state that the property was in Multnomah County is evidently the result of an oversight, as it alleges: “That said personal property at the time of the commencement of this action is in the possession of the defendants at 305 G-lisan Street, in the City of Portland, county of Multnomah, State of Oregon. ’ ’ The judgment of the Circuit Court is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.