Frigidaire Sales Corp. v. Pospeshil

Plaintiff brought replevin for a Frigidaire, and, from summary judgment in favor of defendant, has appealed. The article was sold to Claire B. Whitney on conditional sales contract, which is urged to be a chattel mortgage and void against the defendant, as it was not filed.

The writing here is similar to those involved inContractors Equipment Co. v. Reasner, 242 Mich. 589; FederalCom'l Sav. Bank v. Internat'l Clay Machinery Co., 230 Mich. 33 (43 A.L.R. 1245), which were held to be agreements of conditional sale, and a like holding is made in this case. See, also, Nelson v. Viergiver, 230 Mich. 38; Burroughs AddingMachine Co. v. Wieselberg, 230 Mich. 15.

Plaintiff sold the article to Whitney, who was engaged in building and selling houses. It knew this to be his business, knew that it was usual to install refrigeration in the houses, and knew the article was to go into one of the houses.

Defendant, who purchased from Whitney the house so equipped, contends the writing void as to him because not filed under 2 Comp. Laws 1929, § 9550:

"9550. Conditional sale of property for resale; written contract, filing, discharge. SECTION 1. Whenever any personal property is sold and delivered to any person, firm or corporation regularly engaged or about to engage in the business of buying and selling such personal property, with the condition affixed to the sale that the title thereto is to remain in the vendor of such personal property until the purchase price thereof shall have been paid, with the agreement express or implied, that the same may be resold, every such conditional sale in order for the reservation of title to be valid except as between the vendor and vendee shall be evidenced in writing and the written contract of every such conditional sale or a true copy thereof shall be filed and discharged in the same manner as chattel mortgages are required to be filed and discharged."

It is argued by plaintiff that Whitney was not engaged in buying and selling refrigeration as such, and therefore the statute does not apply. We think what was here done falls within the statute, that it was intended to cover such a transaction.

This statute was before the Federal court in Re Mutual MotorsCo., 260 Fed. 341. There the buyer was engaged in equipping and selling automobiles. He bought tires and rims on conditional sales contract, and used them in equipping the automobiles. It was contended there, as here, that the buyer was not engaged in the business of buying and selling tires and rims as such and that, therefore, the statute did not apply. On petition for reclamation of the property, the court held:

"The only other reason urged in support of the argument that this statute is not applicable to this case is that the bankrupt was not engaged in selling tires and rims as such. It was part of the regular business of the bankrupt to buy such accessories and sell the same to purchasers of automobiles as part of the necessary equipment. The business of the bankrupt falls within the definition of the statute and there is no merit in this contention."

We think the Federal court reached the right conclusion, and we have like conclusion here.

Affirmed.

McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.