Swank v. Moisan

Mr. Jtjstice McCamant delivered the opinion of the court. 1. This appeal raises only one question of law: Did the Circuit Court err in requiring defendants to elect on which of their affirmative defenses they would stand? The power of the Circuit Court to require such election in a proper case is well established, Harvey v. Southern Pacific, 46 Or. 505, 512 (80 Pac. 1061), provided that the application of the adverse party is made seasonably: Rosenwald v. Oregon City Transp. Co., 84 Or. 15 (163 Pac. 831, 833). The action of the court in requiring an election must he based on some good reason shown by the record: Suzsnik v. Alger Logging Co., 76 Or. 189, 195 (147 Pac. 922). 2,3. The only ground for requiring an election which is relied on in this ease is that the two defenses are “inconsistent and legally contradictory.” If the contract of sale is invalid as contended in the second affirmative answer, the warranties which defendants set up in their first affirmative answer are also invalid: 2 Mechem on Sales, § 1056; Howard v. Harris, 8 Allen (90 Mass.), 297; Gunderson v. Richardson, 56 Iowa, 56 (8 N. E. 686, 41 Am. Rep. 81); Finley v. Quirk, 9 Minn. 194 (86 Am. Dec. 93, 95). The legal contentions of defendants are therefore not harmonious, but this is not sufficient to charge these answers with inconsistency; Snodgrass v. Andross, 19 Or. 236, 239 (23 Pac. 969). Under the Oregon decisions answers are not inconsistent so long as they may both be true; McDonald v. American Mortgage Co., 17 Or. 626, 633 (21 Pac. 883); Snodgrass v. Andross, 19 Or. 236, 239 (23 Pac. 969); Veasey v. Humphreys, 27 Or. 515, 520 (41 Pac. 8); Randall v. Simmons, 40 Or. 554, 559 (67 Pac. 513); Dutro v. Ladd, 50 Or. 120, 122 (91 Pac. 459); Susznik v. Alger Logging Co., 76 Or. 189, 195 [667] (147 Pac. 922). Tested by this rule the affirmative answers are not inconsistent and the Circuit Court should not have required defendants to elect as between them. 4-8. Notwithstanding this error the judgment should be affirmed if the second affirmative answer is insufficient. The sufficiency of this answer is dependent on the construction to be given Section 8 of the motor vehicle law of 1911, quoted above. The purpose of legislation requiring the registration of automobiles is defined in Huddy on Automobiles (3 ed.), Section 59: “The reason assigned for the necessity of registration and licensing is that the vehicle should be. readily identified in order to debar operators from violating the law and the rights of others, and to enforce the laws regulating the speed, and to hold the operator responsible in cases of accident. The legislatures have deemed that the best method of identification, both as to the vehicle and the owner or operator, is by a number on a tag conspicuously attached to the vehicle. In case of any violation of law this furnishes means of identification, for, from the number, the name of the owner may be readily ascertained and through him the operator.” With the above purposes in view the legislature has provided that unless a motor vehicle is registered with the Secretary of State within ten days after its sale, such sale is invalid. The act does not make the sale invalid ab initio-. The contract of these parties was valid when made. The effect of the statute is to attach to every sale of a motor vehicle a contingent condition subsequent under which the sale may become abortive on failure to comply with the statutory requirements with reference to registration. The contract with which we are concerned was not immoral and it violated no statute when it was made. Does the [668] invalidity of the sale arising ten days later through the operation of the statute preclude the enforcement by the vendor of a note given for the purchase price? There is a vital distinction between a contract void ab initio and a contract merely voidable; Bradtfeldt v. Cooke, 27 Or. 194, 201 (40 Pac. 1, 50 Am. St. Rep. 701). The contract was ineffectual rather than illegal and the case therefore falls without the rule announced in Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093); Pacific Livestock Co. v. Gentry, 38 Or. 275, 290 (61 Pac. 422, 65 Pac. 597); Cullison v. Downing, 42 Or. 377, 383 (71 Pac. 70); Jackson v. Baker, 48 Or. 155,157 (85 Pac. 512). We have found no case construing such a statute as that with which we are concerned, but under analogous statutes regulating sales the rule seems to be that the vendor cannot recover the purchase price of property sold in a manner which the statute inhibits. The cases make no distinction between actions based on the contract of sale and those based on notes or checks given for the purchase price. It is held that a merchant whose weights have not been sealed as required by statute cannot recover the purchase price of goods sold by these weights: Smith v. Arnold, 106 Mass. 269, 271; Sawyer v. Smith, 109 Mass. 220; Bisbee v. McAllen, 39 Minn. 143, 144, 145 (39 N. W. 299). Where a statute requires an official survey of lumber by a sworn surveyor, a merchant cannot recover the purchase price of lumber sold without such survey: Richmond v. Foss, 77 Me. 590 (1 Atl. 830); Prescott v. Battersby, 119 Mass. 285, 287. A Massachusetts statute required “oats and meal to be bargained for and sold by the bushel.” A seller who sold by the bag was denied the right to recover the purchase price: Eaton v. Kegan, 114 Mass. 433, [669] 434, 435. Several of the states have enacted statutes requiring an official analysis of commercial fertilizers and the marking of their containers in a certain manner. It is held that no action will lie for the enforcement of promissory notes given for the purchase price of fertilizers sold in violation of these regulations-: Campbell v. Segars, 81 Ala. 259 (1 South. 714); Pacific Guano Co. v. Mullen, 66 Ala. 582, 589; Johnston v. McConnell, 65 Ga. 129, 130-132; Conley v. Sims, 71 Ga. 161, 162, 163; Allen v. Pearce, 84 Ga. 606 (10 S. E. 1015); Vanmeter v. Spurrier, 94 Ky. 22, 28-31 (21 S. W. 337); McConnell v. Kitchens, 20 S. C. 430, 439, 440 (47 Am. Rep. 845). The sale of plaintiff’s automobile became invalid ten days after the date of sale by operation of this statute. There being nothing immoral or unlawful in the contract of the parties, the law will not leave them where it finds them. Plaintiff could replevy his automobile and recover the value of its use by the defendants: Keller v. Bley, 15 Or. 429, 433 (15 Pac. 705); Bowman v. Wade, 54 Or. 347, 352 (103 Pac. 72); Kidder v. Hunt, 1 Pick. (18 Mass.) 328, 331, 332 (11 Am. Dec. 183); Basford v. Pearson, 9 Allen (91 Mass.), 387, 391 (85 Am. Dec. 764); Williams v. Bemis, 108 Mass. 91, 92, 93 (11 Am. Rep. 318); White v. Wieland, 109 Mass. 291, 292; Root v. Burt, 118 Mass. 521, 523; Parker v. Tainter, 123 Mass. 185, 187; Lockwood v. Barnes, 3 Hill (N. Y.), 128, 131, 132 (38 Am. Dec. 620); Gillett v. Maynard, 5 Johns. 85 (4 Am. Dec. 329); Smith v. Smith, 28 N. J. L. 208, 217 (78 Am. Dec. 49). But plaintiff cannot recover on a note given to evidence the purchase price on a sale which is invalid. The second affirmative answer stated facts sufficient to constitute a defense and the error in requiring an election [670] was substantial. Tlie judgment is reversed and the cause remanded. Reversed and Remanded. ' Rehearing Denied. Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Bean concur.