Opinion
Docket No. 30, Calendar No. 33,773.
Submitted June 6, 1928.
Decided October 24, 1928. Rehearing denied January 7, 1929.
Error to Wayne; McPeek (Russell R.), J., presiding. Submitted June 6, 1928. (Docket No. 30, Calendar No. 33,773.) Decided October 24, 1928. Rehearing denied January 7, 1929.
Replevin by J.L. Hudson Company against the Apartment Investment Corporation and Martin E. Adamson for the possession of goods sold on conditional sales contract. Judgment for plaintiff. Defendant Adamson brings error. Affirmed.
Joslyn, Joslyn Joslyn, for appellant.
Bernard A. Clark, for appellee.
This case was tried by the court without a jury. No requests for findings were filed. The opinion of the trial court in deciding the case appears in the record. We may treat it as a finding. Wormley v. Grand Rapids Trust Co., 232 Mich. 680. The question presented is, Does the finding of fact support the judgment? Curry v. Shears, 216 Mich. 699.
On August 11, 1924, the plaintiff entered into a contract to sell to the Lewis Institute School for Stammerers certain furnishings, described therein, for the sum of $6,073.83, payable on fixed dates as therein stated. The contract further provided:
"Vendee to have possession of above described merchandise until he defaults hereunder, but the title to remain in vendor until the purchase price is fully paid, at which time vendor will transfer title to vendee. Said above described merchandise shall not be removed from 155 Stimson Place, Detroit, Michigan, without vendor's written consent.
"If vendee fails to make any payment when due, or removes said property from the place designated without vendor's written consent or otherwise violates this contract, vendor may at its option declare the remaining payments due forthwith, and if not paid, may without notice take possession of said above described merchandise wherever found, treat this contract as void, and all payments made thereunder as rent for use of said above described merchandise."
The defendant claims title under a sale made by order of a referee in bankruptcy. The question on which the rights of the parties depend is whether the contract is one of conditional sale or a chattel mortgage. The trial court concluded as a matter of law that it was a conditional sale contract, and entered a judgment for plaintiff. In this he was clearly right. In legal effect the contract in no way differs from that before this court in the recent case of Contractors Equipment Co. v. Reasner, 242 Mich. 589. The decisions of this court were reviewed at length in that case by Mr. Justice FELLOWS, and the conclusion reached that the contract in question was one of conditional sale. In that case the right of the vendor to retake possession was contingent upon his declaring "this contract at an end," and in this case upon his treating "this contract as void." When the plaintiff took possession, the debt was extinguished. It might, under the contract, exercise either of two inconsistent rights, but not both.
The judgment is affirmed.
FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and POTTER, JJ., concurred.