Rudolph Wurlitzer Co. v. Mandarin Co.

The following opinion was filed June 6, 1922: Jones, J. It i.s urged by defendant that the amount claimed to be due on the notes is not the true amount. But the jury and the trial court found that the plaintiff had complied in all respects with the contract and that the amount due was $412.76. We have examined the testimony ' and are satisfied this was the time amount. The only remaining question is one of law/ namely, whether, after having replevied the piano, the plaintiff can recover from the defendant the amount which' was due at the time the replevin action was commenced. Defendant’s counsel urge that, although the contract was [189] described as a lease, it was nevertheless a conditional-sales contract, and with this proposition we agree. Kiefer-Haessler H. Co. v. Paulus, 149 Wis. 453, 135 N. W. 832. They also argue , that in such contracts as the one involved the vendor may, on default by the vendee to comply with the conditions, retake the property, or may treat the sale as absolute and bring an action for the price, but that the assertion of either right is a waiver or abandonment of the other. It is further argued that plaintiff could not affirm in part and disaffirm in part, and that when it took possession of the piano the consideration wholly failed. There is undoubtedly considerable authority in other states for this construction and many cases are cited in which this rule is declared, although in most of them the terms of the contracts varied materially from those of the agreement here involved. The cases presenting both views are reviewed in a note in 12 A. L. R. 503. The contract in the pending case provides that until payment in full the title shall remain in plaintiff; that on failure to make payments as agreed the plaintiff might take possession of the piano and all former payments should be applied as rent; and that in the event of taking possession the plaintiff should have the right to recover all unpaid sums or rentals, and that the right to take possession should be construed as a cumulative remedy and additional to all others. It is urged by appellant’s attorney with much earnestness that the rule adopted by the trial court might in individual cases work serious injury to the vendee. But it is equally easy to conceive of cases where the rule that only one of the two remedies can be adopted would work serious injury to the vendor. We are asked to adopt the theory of waiver or abandonment of remedies and that they were not cumulative in the face of the express agreement that they were. We know of no reason why parties of sound mind may not make such an agreement as these parties made if they choose to do so, and why the amount due may not be recovered [190] although possession of the property has been taken by the vendor. But no elaborate discussion of the subject seems necessary, since this court has adopted the rule that under similar contracts the remedies are cumulative and the assertion of one right is not a waiver of the other. In a recent opinion by Mr. Justice Owen the court said: “However, we do not deem it necessary to pursue the subject further, because of the faulty premise upon which the conclusion must rest, and that is, that a vendor of goods upon a contract of conditional sale waives the right to retake the goods in an attempt to enforce collection of the purchase price. This is not the law of this state. It was held in Wiedenbeck-Dobelin Co. v. Anderson, 168 Wis. 212, 169 N. W. 615, that the two remedies were not inconsistent, and that by pursuing one the vendor did not waive his right to the other. This principle is now embodied in statute law by the provisions of the Uniform Conditional Sales Act, sec. 1684» — 24, Stats, (ch. 672, Laws 1919).” Defiance Machine Works v. Gill, 170 Wis. 477, 481, 175 N. W. 940. Appellant’s counsel recognize the importance of these decisions but seek to distinguish them because in those cases the attempt to make collection preceded the taking possession. But in our opinion the principle is the same whether possession is taken before the action for the amount due is commenced, as in this case, or afterward, and it was so held in Adams v. Anthony, 178 Cal. 158, 172 Pac. 593, where the'seller brought suit on the contract for the amount due while in possession of the property sold. By the Court. — Judgment affirmed. A motion for a rehearing was denied, with $25 costs, on October 10, 1922.