Zederman v. Thomson

121 P. 609, 17 N.M. 56

• Court: New Mexico Supreme Court
• Decided: February 6, 1912
• Docket: No. 1432
• Status: Published

Opinion

OPINION OP THE COURT.

ROBERTS, C. J.

From the agreed statement of facts, and the conclusions of law therefrom by the lower court, it is apparent that the only question presented to the Court was the effect of the transfer of the notes by the Auto Vehicle Company to the plaintiff herein, upon the title and right to the possession of the property described in the notes, default having been made in the payment of the notes.

The lower Court followed the rule, announced by the Supreme Court of Indiana, in the case of the Domestic Sewing Machine Company v. Arthur Shultz (63 Ind. 322) to the effect that the endorsement in blank of a promissory note which stipulates that a certain chattel, therein described, shall remain the property of the payee until the note has been paid, does not, of itself, vest the title to such chattel in the endorsee, so as to enable him to replevy such chattel, for non-payment of the note. The Supreme Court of Florida, in the case of Roof v. Chattanooga Wood Split Pulley Co. (18 South. 597) follows the Indiana holding and one or two other states adhere to the same doctrine, but the weight of authority and the better reasoned cases announce the doctrine that the transfer of the debt operates of itself as an assignment of the seller’s interest in the property.

IVilliston on Sales, Sec. 332.

35 C)^. 695 and authorities cited.

W. W. Kimball Co. v. Mellon, 48 N. W. 1100 (IVis.) and the transferee of the note can maintain replevin for the property, upon default in the payment of the note.

1 There are numerous forms used in condition sale notes, but they are all designed to retain title to the property in the payee of the note as security for the payment of the debt, and the' reasonable construction gives to the transferee of the note the benefit of this security.

2 3 Two other grounds are urged by appelle to sustain the judgment of the lower Court. First: That there was no proof as to the value of the chattel, and Second: That it was necessary for the appellant to allege and prove k return or tender of the notes before he could recover. Neither ground appears to have been urged before the Court below and we do not believe they would support the judgment for defendant. No claim for damage was made in the agreed statement of facts and the plaintiff had possession of the automobile at the time of trial and proof of value was therefore immaterial. It is not necessary for the payee of a conditional sale note or contract to allege and prove a return or tender of the note or contract before suit can be successfully maintained, therefore there is no merit in appellee’s second contention.

The judgment of the lower Court is reversed, and this cause is hereby remanded with instructions to enter judgment in favor of plaintiff, and it is so ordered.