Utah Ass'n of Creditmen v. Buller , 57 Utah 270 ( 1920 )

WEBER, J.

Plaintiff sued to recover $330, a balance due on a sale by it to defendant on tbe furniture, fixtures, and equipment of tbe Welcome Cafeteria. Tbe defense was tbat title failed to some of tbe personal property to tbe extent of tbe claimed balance.

The answer alleges tbat tbe Western Furniture Company was the owner of some of said property, and tbat the defendant was forced to pay said Western Furniture Company therefor in order to bold tbe property. Plaintiff sold tbe property to defendant in September, 1918, for $2,040. Defendant paid thereon $1,710 and refused to pay tbe balance.

Plaintiff acquired title as assignee for tbe benefit of tbe creditors of Mr. and Mrs. G. A. Alder who bad been doing business as tbe Welcome Cafeteria. Tbe case was tried to tbe court without a jury. Defendant appeals from a judgment in favor of plaintiff.

A bill of goods was bought by the Alders of tbe Western Furniture Company in 1917. The evidence is conflicting as to whether anything was said at tbe time of the order for tbe goods about retention,of title. The Alders bad purchased similar goods from the Western Furniture Company before. Defendant offered to prove tbat in tbe prior dealings tbe furniture company bad taken title retaining notes. Tbe proffered testimony was excluded by the court. This ruling is assigned as error. It is claimed by appellant tbat the offered testimony bore directly upon the probabilities as to whether tbe witness for appellant was correct in bis testimony tbat bis recollection of a conversation which be as a salesman of tbe furniture company bad with Alder was that the purchasers were to sign a title retaining note, or whether the Alders were correct in testifying that nothing was said as to title retaining notes.

On “Course of Conduct or Dealing” it is said in 17 Cye. 281:

■“The presumption of regularity is founded upon an inference of fact. Whenever, in the opinion of the court, such a relevant course of conduct or dealing on the part of a given individual is established as to render its continuance to the time involved in the issue probable, its existence may he used as evidence that he acted in accordance with it on a particular occasion.”

We fail to perceive that the excluded testimony was relevant or that it had any probative value. No necessary or logical connection existed between the prior dealings entered into by the parties and the latter sales. If admitted, the testimony that prior dealings had resulted in the 1 execution of title retaining notes for property purchased by the Alders from the furniture company would tend to prove that the credit of the Alders had improved rather than that their testimony at the trial of the present case was probably untrue.

As to another bill of goods purchased by the Alders of the Western Furniture Company the evidence was that the purchase was made in the ordinary way; the goods being charged on account. When these goods were delivered, the purchaser signed what the parties called a “delivery slip,” which is the only evidence tending to show contractual terms of the sale of these goods and which appellant claims to be evidence of an express contract of a conditional sale, or at least a circumstance plainly evidencing the intention of the parties to reserve title in the Western Furniture Company. The delivery slips, among other things, contained the name of the vendor, date of delivery, list of goods and prices, that they were received in good condition, and in the body of the slip the words: “Conditional sale. Title retained by Western Furniture Company until paid in full.” The “terms” were left blank, the printed line on that subject being: “Terms $-down. $-every week ——■ month. ’ ’ By itself such a delivery slip is far from the modicum of proof required to establish a conditional sale.

When property is delivered to a purchaser, and there is no previous contract retaining title in the seller, the mere fact that a delivery slip accompanies the goods and is 2 signed by the purchaser to prove delivery in good condition cannot be held to constitute a contract between vendor and vendee.

The proof does not show that the Alders ever read the delivery slip or that their attention was called to the stipulation, or that they ever intended to agree that title to these goods should remain in the seller. Whatever may have been the intention of the seller is immaterial. Any undisclosed intent of the seller could not of itself be sufficient to mate the delivery conditional. In order that there may be a conditional sale and title retained by the vendor, the 3 minds of the parties must meet, unless the contract be executory for an article to be manufactured, and then under the Uniform Sales Act (Comp. Laws Utah, 1917, §§ 5114, 5123, 5129) title does not pass prior to the appropriation of the goods to the contract, and at the time of the appropriation to the contract the vendor may reserve the right of possession or the right of property until certain conditions have been fulfilled.

The finding of the district court that the Western Fur-, niture Company did not sell the goods conditionally and did not reserve title until they were paid for. is amply sustained by the evidence.

We think the judgment right, and it is therefore affirmed, with costs.

CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.