Ham Const. Co. v. Dempster Bros.

255 S.W.2d 712, 36 Tenn. App. 356, 1952 Tenn. App. LEXIS 123
CourtCourt of Appeals of Tennessee
DecidedNovember 19, 1952
StatusPublished

This text of 255 S.W.2d 712 (Ham Const. Co. v. Dempster Bros.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ham Const. Co. v. Dempster Bros., 255 S.W.2d 712, 36 Tenn. App. 356, 1952 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1952).

Opinion

HOWARD, J.

On August 25, 1950, the plaintiff, Ham Construction Company, a corporation, purchased from the defendant, Dempster Brothers Inc., machinery dealers with offices at Nashville, Knoxville and Chattanooga, two Model D. Diesel Tournapulls and two scrapers, at a price of $30,804. These machines were purchased by the plaintiff to be used on construction work at the Arnold Engineering Development Center near Tullahoma, Tennessee, where the plaintiff had previously procured contracts.

Under the terms of the sale plaintiff paid $3,080.40 cash and executed a title retention contract and note for the balance of $27,723.60, payable in monthly installments of $3,080.40. Plaintiff paid the monthly installment due September 25th but defaulted on the October and November payments. On December 11 the defendant repossessed the machines which, at that time, were in Coffee County, and took them to Nashville where they were kept in one [359]*359of the defendant’s buildings until after the public sale ■which was held on December 21st.

Upon repossessing’ the machines the defendant advertised them for sale by placing three posters in the City of Nashville at the following places: One on the bulletin board at the Davidson County Court House, one on the bulletin board at the Federal Building, and the third on the side of one of the defendant’s buildings at its place of business on Foster Avenue where the machines were located.

The posted notices informed the public that the defendant would sell the machines ‘ ‘ at public auction or sale to the highest and best bidder for cash at 10:00 o’clock A. M. on the 21st day of December, 1950, in the yard of its place of business on Foster Avenue in Nashville, Davidson County, Tennessee, where said property is now located,” and listed the four items to be sold.

On the date of the sale the machines were sold at public auction, the defendant bidding them in for $20,000. There were no other bids. No question was made as to the contents or form of the notices, the time within which they were posted, or of the sale, and it was admitted that J. B. Ham, President of the plaintiff corporation, was duly notified regarding the date and time of the sale, and that he sent two of plaintiff’s employees, one being the superintendent, to the sale. These employees admitted that they were present at the sale but did not participate therein.

Plaintiff alleged that the defendant, upon regaining possession of the property, failed to comply with the statute, Section 7287, Williams’ Code of Tennessee, and sued to recover $6,299.42, which amount was paid by plaintiff before default, and a jury was demanded to try the case.

[360]*360It appears that after filing suit the plaintiff corporation went into bankruptcy, and tbe duly appointed Trustee subsequently took over tbe prosecution of tbis suit.

At tbe conclusion of all tbe evidence tbe trial judge, upon tbe defendant’s motion, directed a verdict for tbe defendant, tbe judgment of tbe Court being that tbe defendant bad substantially complied witb tbe law in all requirements. Thereafter motion for a new trial having been made and overruled, tbis appeal in error was granted and perfected.

First it is insisted that one of tbe notices was not posted in a public place as required by tbe statute; that tbe notice posted by tbe defendant on tbe side of one of its buildings, located in tbe yard of its place of business on Foster Avenue, in tbe City of Nashville, was not a public place. No question was made regarding tbe two other notices.

Under our decisions tbe notices must be posted in accordance witb tbe conditional sales law, and a public place has been defined as a place where many people are accustomed to congregate or pass by, and where such notices are likely to attract public attention and their contents become known to the community, and thus give information of tbe sale to persons who may be interested and possibly become bidders. Dacus v. Knoxville Outfitting Co., 9 Tenn. App. 683; 78 C. J. S., Sales, Section 601, pages 363, 364.

It appears that tbe side of tbe building on which tbe notice in question was posted was about 10 feet from a road used by tbe public generally and particularly by contractors doing business witb tbe defendant, and that said building was located about 12 feet from tbe defendant’s main office building. Eegarding tbis notice Mr. [361]*361Strand, Branch Manager of the defendant’s Nashville office, testified as follows:

“D21 Now is the place that yon posted that notice there on the shed, was that a public place? A. Tes sir.
“D22 Was that located where there would be a few or many people who might be interested in such type of equipment, might pass by and have occasion to see such notice ? A. Yes sir.
“D23 Is that, just describe the situation there.
Is that on a roadway or driveway where contractors come and go—
“Mr. Cunningham (interposing): Well now, may it please the Court—
“The Court (interposing): Don’t lead him.
*4!, 4fr .JA. Ji. .a. w ¶* w -¡V
“D24 (Mr. Carriger) Just state, what opportunity would there be for people, interested people, people who might be interested in purchasing such equipment, to see it at the place you posted it there on that shed? A. Well, our office, of course, see, in this business, and parts and equipment, and people in this business that would use a piece of equipment like that would be and do come to our office regularly for parts and equipment, and that access road, there’s a private road by the, it, it’s open to the public and there’s forty or fifty cars a day go through there as a shortcut, so it’s—
“D25 (interposing) You say there is a shortcut — -A. (Interposing) Yes sir, between two streets.
“D26 And does the public use it generally? A. Yes sir.
[362]*362££D27 Or is it used solely by your customers ? A. No sir, generally.
££D28 And the public uses it generally? A. Yes, sir.
££D29 And what type of people would be interested in purchasing machinery of this kind? A. Contractors.
“D30 And does Dempster Brothers do business with few or many contractors? A. Many contractors.
£<D31 And do few or many of them in the course of a week use that road adjacent to this shed where this was posted, in coming to your premises there— (Interposing, and continuing) — to do business with Dempster Brothers? A. There are many.”

Under the circumstances did the notice in question, posted by the defendant, substantially comply with the law? This question must be answered in the affirmative. From where the notice was posted it could not only be seen by the traveling public using the highway, but also by contractors and road builders going to and from the defendant’s office, who might be interested in purchasing the machines. Therefore, the location of the notice was not only advantageous to prospective buyers, but to the defaulting purchaser as well. Under our decisions a substantial compliance with the statute is all that is required. Allen v. Reed, 147 Tenn. 612, 250 S. W. 546; Range Motor Co. v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Johnson City Buick Co. v. Johnson
54 S.W.2d 946 (Tennessee Supreme Court, 1932)
Elmore v. Ritter Implement Co.
87 S.W.2d 1008 (Tennessee Supreme Court, 1935)
Range Motor Co. v. Tipton
33 S.W.2d 75 (Tennessee Supreme Court, 1930)
Dacus v. Knoxville Outfitting Co.
9 Tenn. App. 683 (Court of Appeals of Tennessee, 1929)
Quick v. Woodward Motor Co.
130 S.W.2d 147 (Court of Appeals of Tennessee, 1938)
Allen v. Reed
147 Tenn. 612 (Tennessee Supreme Court, 1922)

Cite This Page — Counsel Stack

Bluebook (online)
255 S.W.2d 712, 36 Tenn. App. 356, 1952 Tenn. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ham-const-co-v-dempster-bros-tennctapp-1952.