Fletcher v. Lazier

Gilfillan, C. J. To determine the rights of the parties in respect to the personal property, we have to consider not only the clause of the contract indicating a sale, but other clauses bearing upon it. The clause: “The lease of this property is taken by said second party subject to the conditions of a sale of the furniture now in said building, and formerly belonging to the said party of the first part, and now sold to said second party, said sale being part of this agreement, and the conditions thereof being as follows,” — followed by a statement of the times and amounts of payments, clearly indicates a present sale, vesting the title at once unconditionally in the vendee, the purchase price to be paid in future installments. On the other hand, the clause: “And said second party to keep the furniture insured in said first party’s favor, in the amount equal to the amount owed the first party therefor, for and during the term of this lease,” — indicates an intention to reserve in the vendor some interest in or lien on the property amounting to an insurable interest, though it does not suggest the character of it, further than that it is to be measured by the amount of purchase price due at any time. The provision that default in payment of any sum promptly on the day “will also work a forfeiture of all moneys paid on said furniture, and allow the said first party to enter upon the ownership and have possession of the property, free from any claim of second party,” indicates a condition subsequent, to defeat a vested title; and, as it has no respect to the amount actually paid or the amount actually unpaid, and applies as well if there be but a dollar unpaid as if the entire purchase money be unpaid, it is to be regarded as in the nature of a penalty, inserted in terrorem, to enforce payment. Penalties and forfeitures are not favored. But while the court might not enforce a forfeiture of the vested title provided for to coerce payment, there is no reason why they should not enforce a stipulation for post-session as a security. Taking all the clauses together, we construe the contract to reserve to the vendor a lien on the furniture for the purchase money unpaid, with the right to the possession on default. [329] The plaintiff is therefore entitled to maintain an action for the possession. Order affirmed. Buck, J., absent, sick, took no part. (Opinion published 59 N. W. 1040.)