Wiedenbeck-Dobelin Co. v. Anderson , 168 Wis. 212 ( 1918 )

Siebeciceb, J.

It is considered in this case that the trial court correctly held that L. G. and B. G. Anderson were entitled to the possession of the seven manure spreaders upon the following grounds:

1. The conditional sales contract between the John Deere Plow Company and the Anderson Brothers Manufacturing Company was a valid and subsisting contract between these parties in April, 1916, when the Plow Company assigned it and the judgment held by the Plow Company against Anderson Brothers Manufacturing Company tO' L. G. and B. G. Anderson in consideration of their payment to the Plow Company of the sum of $700.

2. No- third person had acquired any interest in the seven manure spreaders here involved at the time of such assignment, and L. G. and B. G. Anderson acquired the title to them under such written assignment. They immediately took possession thereof and had possession of them as their property on the 3d day of July, 1916, when the sheriff levied thereon under the execution issued on the Seefeld judgment as the property of the Anderson Brothers Manufacturing Company; and such execution levy and the sale thereunder were illegal and void.

3. The plaintiff acquired no interest in or right to these seven spreaders as purchaser at such execution sale and hence is not entitled to recover possession of them in, this action.

4. The action of the John Deere Plow Company on notes given by the Anderson Brothers Manufacturing Company for goods sold and delivered to it did not operate to convert the conditional sale of such manure spreaders into- an absolute sale.

The contract provides that title to goods sold under it shall remain vested in the John Deere Plow Company “until the price thereof shall be paid in cash and until all notes given therefor and to be given under this contract are paid It is without dispute that the cost price for these spreaders had not been paid by the Anderson Brothers Manufacturing Company before the Plow Company brought the action on the notes, nor was payment thereof obtained in any proceeding in that action. The fact is that the purchase price for the manure spreaders had not been paid when the Plow Company took possession of them and sold them and deliv-e'red them to L. G. and B. G. Anderson in April, 1916. The judgment on the notes in no- way changes the contract obligation for payment of the purchase price nor affects the Plow Company’s right under the contract to enforce its security to secure payment by taking the property in default of payment of the purchase price.

These two remedies of enforcing such payment do not constitute inconsistent rights for the enforcement of this obligation and hence impose no alternative to elect between them. They are cumulative and give the Plow Company the right to pursue both to secure payment of its claim. Ratchford v. Cayuga Co. C. S. & W. Co. 217 N. Y. 565, 112 N. E. 447; Carpenter v. Meachem, 111 Wis. 60, 86 N. W. 552.

Upon the foregoing grounds the judgment of the circuit court must be upheld, and other questions referred to in the argument do not require treatment on this appeal.

By the Court. — The judgment is affirmed.