Whitney v. Biggs , 156 N.Y.S. 1107 ( 1915 )

Swartwood, J.

The whole contention of the appellant here seems to be that at the time the sheriff levied on and sold the Ford automobile it was the- property of Updike, his claim being that Whitney having paid to the Ford Company all that it was to receive from him in money, as its agent, he became the absolute owner of the car, and that, when he made the sale to Updike, Updike received the full title from him and that the assignment of the Ford Motor Company to Whitney passed nothing to him for the reason that at that time it had no interest in the car. The appellant ’s further claim is that the execution of the buyer’s order and agreement by Updike back to the Ford Company was inoperative for the purpose of retaining or vesting in the Ford Motor Company the title to the car. This argument, of course, overlooks the fact that Whitney as the agent of the Ford Motor Company owed it a duty in addition to the money consideration.

To agree with the appellant’s contention would be to hold that the agency contract between Whitney and the company was void and of no -effect, and also that the buyer’s order and agreement entered into between the Ford Motor Company, Whitney and Updike was void and of no effect. The appellant does not give any reason why these agreements were void other than that already stated.

The appellant’s counsel in their brief state “ The test in this case is, could the Ford Motor Company after payment by plaintiff of eighty-five per cent, of the list price of this car, and before the sale to Updike, have taken the ear under its lien from the plaintiff in this action, claiming that the balance of fifteen per cent was due it from Whitney? ” This question should, I believe, be answered in the affirmative for the reason that the Ford Motor Company did not claim a lien on the car for the fifteen per cent, merely, but claimed that it held the title to the car until Whitney and his conditional vendee had fully performed their agreements. The Ford Motor Company could, therefore, require performance of both Whitney’s and Updike’s agreements, not only as to the payment of the full purchase price of the car, but as to the other conditions on which the sale was made.

By the agency contract between the Ford Motor Company and Whitney, Whitney became the agent of the Ford Company in a certain specified territory for the purpose of selling its cars at list price plus the freight. His commission for making such.sale was fifteen per cent, of the list price of each car. At the time of ordering cars they were delivered to him by the Ford Motor Company under the terms of contract for sale and delivery as its agents.

The transaction did not amount to a sale to Whitney at eighty-five per cent of the list price. By the terms of the agency agreement, the Ford Company restricted the sale of its cars by its agent at less than the list price, and to hold that the agent acquired a full and complete title to the cars would be tantamount to holding that the Ford Motor Company could not make a valid agreement with its agent fixing the price at which he should sell them, and therefore an unjustifiable interference with its right to contract. This agency contract is not against public policy, nor can it be condemned on any other ground. Whitney was not buying the cars from the Ford Company. If he were, he would be in the position of a user and by his agency contract would be obliged to pay the list price, and he could not resort to the subterfuge of obtaining an agency contract for the purpose of obtaining a car for his. own use at eighty-five per cent of its list price. It must be presumed that Whitney entered into his agency contract with the Ford Motor Company in good faith. The Personal Property Law of New York contemplates that the ownership of chattels is to remain in the conditional vendor or in a person other than the conditional vendee until they are paid for or until the occurrence of a future event or contingency.

The case of Ford Motor Company v. International Automobile League, 209 Fed. Rep. 235, relied on by the appellant, does not hold that the Ford Motor Company cannot enforce its contract with its agents and fix the price at which its cars shall be sold by them to users. That case holds that the Ford Motor Company cannot control the price of a car after it has passed into the hands of a third party or user, who has bought it from an agent and paid the full purchase price therefor. Such is not the situation here.

Updike, who had bought this car and signed the buyer’s order and agreement and agreed to pay for the car at the rate of fifty dollars per month, had not paid for it and the car remained unpaid for on the date the sheriff sold it under his levy. The Ford Motor Company had accepted the terms of sale by Whitney to Updike and Updike had agreed, in writing, that the title to the property should remain in the Ford Motor Company until lie had paid for the car. Whitney had agreed that the title should remain in the Ford Company, not only by his agency contract but by the buyer’s order and agreement signed by Updike at the solicitation of Whitney and accepted by him.

Whitney is not here asserting title as against the Ford Company and Updike cannot assert title until he has paid the purchase price. Neither can any judgment creditor claim a title for him that he does not possess.

The agency contract in express terms protected Whitney for the advance of eighty-five per cent of the list price of the car by providing that he should have a lien on it for that amount, but he could not receive title to the car from the Ford Motor Company until he had complied with the other conditions of his contract. The selling of the car to Updike and requiring that he execute the regular form “ buyer’s order and agreement ’ ’ agreeing that the title should remain in the Ford Motor Company until the car should be paid for were acts of Whitney in the performance of his contract with the Ford Motor Company and he is bound by his acts.

It, therefore, follows that the title to the car remained in the Ford Motor Company until it assigned all its rights therein to the plaintiff on September 12, 1914, at which time the plaintiff became the owner and holder of the legal title to the car. A decision in accord with the defendant’s position would enable a person who had a judgment standing against him to get possession of a car in consideration of a small payment and at once have the car sold on an execution issued on the judgment. Such a holding would indeed be “ perilous to the innocent and a temptation to the. wicked.” The law seems to be settled that the interest of a vendee in property sold under a conditional sale agreement is not subject to levy and sale on execution issued on a judgment against him. Friedman v. Phillips, 84 App. Div. 179. The plaintiff having forbade the sale by the sheriff may, of course, maintain this action. It does not appear for how much the car was sold, but it is not the intenton by this decision to hold that the difference'in the amount claimed by Whitney may not be reached by proper proceeding’s against Updike.

Judgment affirmed, with costs.