Opinion
October 31, 1966. —
November 29, 1966.
APPEAL from a judgment of the county court of Dane county: WILLIAM C. SACHTJEN, Judge. Affirmed.
For the appellant there were briefs by Aberg, Bell, Blake Metzner, and oral argument by Lorence D. Wheeler, all of Madison.
For the respondent there was a brief and oral argument by Thomas J. Bergen of Milwaukee.
This is an action in replevin brought by Associates Discount Corporation, the assignee of a conditional vendor of the automobile in question, to recover the automobile from Mohs Realty, Inc., an attaching creditor of Eugene C. Bleich, the conditional vendee.
On March 20, 1963, Mr. Bleich entered into a conditional sales contract in Fort Lauderdale, Florida, for the purchase of a 1963 automobile. The contract was subsequently assigned to the plaintiff, Associates Discount Corporation, and filed in Florida pursuant to the law of that state.
In October, 1963, Mr. Bleich left Florida and came to Madison, Wisconsin, without notifying the plaintiff. Upon his arrival on October 8th, he called a representative of the plaintiff to inform him that he had left for the purpose of obtaining financing for his Florida business and that he intended to return to Florida. During the next two months, Mr. Bleich had several telephone conversations with representatives of the plaintiff, informing them that he would return to Florida after financing was secured for his business. In these conversations, however, Mr. Bleich successively pushed back the date for his return to Florida.
On December 24, 1963, the automobile was attached in an action commenced by Mohs Realty, Inc., operators of the Ivy Inn Motor Hotel in Madison, for $464.19 in bills accumulated by Mr. Bleich during his stay in Madison. The plaintiff subsequently recorded the conditional sales contract in Dane county and advised the sheriff by letter of its interest. On January 7, 1964, the sheriff of Dane county sold the automobile at a public sale to Mr. Bruce Mohs, representing the defendant Mohs Realty, Inc., subject to the asserted interest of the plaintiff.
In its original complaint, the plaintiff asked for recovery of possession of the automobile or $2,000, alleged to be the value of the property. The ad damnum clause read as follows:
"Wherefore, plaintiff prays for judgment against the defendants for recovery of possession of said property, and damages for such detention, or the sum of Two thousand dollars ($2,000.00) being the value thereof, and the damages sustained by plaintiff, together with the costs and disbursements of this action."
The defendant filed a bond pursuant to sec. 265.06, Stats., thereby permitting the defendant to retain possession of the vehicle. The defendant also moved that the plaintiff make its complaint more definite and certain. The plaintiff filed an amended complaint, this time asking for only recovery of possession, plus damages and costs:
"Wherefore, plaintiff prays for judgment against the defendant for recovery of possession of said property, damages for such detention, the same being the difference between the value of the automobile when seized by defendant, and the value at the time possession of said vehicle, is delivered to plaintiff, together with the costs and disbursements of this action."
The trial judge stated as a conclusion of law "that the plaintiff is entitled to the recovery of possession of the . . . [automobile], or the value thereof of $2,000, and damages at its option." The plaintiff in open court elected to take the value of the property, and a judgment of $2,491.25 was entered in its favor. The judgment included damages, costs and interest.
Statutes Involved.
Sec. 122.13, Stats. 1963:
" Prohibition of removal or sale without notice. Unless the contract otherwise provides, the buyer may, without the consent of the seller, or his assignee if any, remove the goods from any county and sell, mortgage or otherwise dispose of his interest in them; but prior to the performance of the condition, no such buyer shall remove the goods from a county in which the contract or a copy thereof is filed, except for temporary uses for a period of not more than thirty days, unless the buyer not less than ten days before such removal shall give the seller, or his assignee if any, personally or by registered mail written notice of the place to which the goods are to be removed and the approximate time of such intended removal; . . ."
Sec. 122.14, Stats. 1963:
"Refiling on removal. When, prior to the performance of the condition, the goods . . . are removed from another state into a county in this state where such contract or copy is not filed, the reservation of the property in the seller shall be void as to the purchasers and creditors described in section 122.05, unless the conditional sale contract or a copy thereof shall be filed in the county to which the goods are removed, within ten days after the seller has received notice of the county to which the goods have been removed. . . ."
Sec. 265.06, Stats.:
"Return of property to defendant. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof upon delivering to the sheriff a bond, executed by sufficient sureties, to the effect that they are bound in a sum double the value of the property (as stated in the complaint or affidavit of the plaintiff), for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may be recovered against the defendant. If a return of the property be not so required within three days after the taking and the service on the defendant it shall be delivered to the plaintiff, except as provided in section 265.11. The sheriff shall promptly notify the plaintiff that the defendant has demanded a return of the property."
Sec. 270.59, Stats.:
"Judgment in replevin. In any action of replevin judgment for the plaintiff may be for the possession or for the recovery of possession of the property, or the value thereof in case a delivery cannot be had, and of damages for the detention; and when the property shall have been delivered to the defendant, under section 265.06, judgment may be as aforesaid or absolutely for the value thereof at the plaintiff's option, and damages for the detention. . . ."
There are two questions presented by this appeal. The first is whether Mr. Bleich, the conditional vendee, "removed" the automobile from Florida to Wisconsin so as to require the vendor to file a copy of the conditional sales contract here pursuant to sec. 122.14, Stats. 1963. The second question is whether the vendor is entitled only to a judgment for possession of the automobile or, on the other hand, whether it was entitled, alternatively, for a judgment for the value of such vehicle.
Was There a Removal?
The trial judge concluded that the car was not removed to Wisconsin, and we believe that this conclusion is warranted by the record. Whether there has been "removal" as that word is used in sec. 122.14, Stats. 1963, is not to be determined merely by inquiring whether the vehicle has been taken temporarily from one place to another; in prior cases, this court has determined that removal under this statute refers to a permanent change in situs. Thus, in Forgan v. Smedal (1931), 203 Wis. 564, 571, 234 N.W. 896, the court framed the question in the following manner:
"The vital question for determination on this appeal . . . is: Was the automobile `removed' from the state of Illinois to the state of Wisconsin within the meaning of the following language of sec. 122.14, to wit: `When, prior to the performance of the condition, the goods are removed from another state into a filing district in this state.'"
In its answer to this question, the court made it clear that a temporary transfer did not constitute a removal:
"Does not this language, when applied to an automobile whose chief characteristic is movability and which exists the one purpose of transportation between places more or less distant from each other, clearly mean that the auto, in order to be considered `removed' under this statute, must be taken to another state with an intention on the part of its owner to change more or less the permanent situs of the car?"
The policy reasons behind its determination as to the meaning of the word "removal" were asserted by the court:
"To hold otherwise would give rise to great injustice and would lead to a situation which would, to say the least, render a conditional sales contract an exceedingly hazardous transaction from the viewpoint of the seller who advances a large part of the purchase price and who makes the purchase by the buyer possible. Automobiles are purchased for the purpose of transportation and every one knows that they are often used for making trips from one state to another for temporary visits or purposes. To hold that an automobile so employed is `removed' from one state to another within the meaning of the Conditional Sales Act, so as to require the seller, after receiving notice, to file his contract, or a copy thereof, in the filing district where the car may be temporarily located, is to write into the act something that seems never to have been intended."
Forgan v. Smedal was affirmed in Confidential Loan Mortgage Co. v. Hardgrove (1951), 259 Wis. 346, 48 N.W.2d 466, where once again we held that property was not removed for purposes of sec. 122.14, Stats., when the automobile was temporarily located in Wisconsin.
In both the Forgan Case and the Confidential Loan Case, a vehicle subject to a conditional sales contract was driven to Wisconsin for a brief stay which was extended by reason of an accident occurring in Wisconsin. Nevertheless, the court refused in each case to hold that the property had acquired that degree of permanence which permitted it to have a new situs in this state or, in the terms of the statute, to hold that it had been removed to Wisconsin.
The two aforementioned cases would appear to be dispositive of the case at bar. The appellant, however, urges that when the so-called temporary visit exceeds thirty days there has been removal by reason of the standard fixed in sec. 122.13, Stats. 1963. The latter section provides that a buyer may not remove goods for more than thirty days from a county in which a contract is filed unless he gives appropriate notice to the seller.
We do not regard the thirty-day standard contained in sec. 122.13, Stats. 1963, to be controlling. That section relates to the removal of goods from a county, whereas sec. 122.14, Stats. 1963, applies to the removal of goods to a different state. In addition, sec. 122.13 places a duty upon the buyer, whereas sec. 122.14 sets the responsibilities of the conditional vendor. Instead of imposing a duty upon the seller, sec. 122.13 is actually designed for his benefit; it imposes a duty only upon the buyer of goods. See Commissioners' Note, 2 U.L.A. 22. We believe it clear that it is sec. 122.14 which is germane to the case at bar.
As further evidence that the thirty-day rule of sec. 122.13, Stats. 1963, is inapplicable, we note that the automobile in Forgan v. Smedal was in Wisconsin for a period of ninety-seven days before it was seized.
The appellant also urges that the instant case is not comparable to that in which an automobile has been detained in another state by reason of an accident. It is difficult to determine whether there has been an intent to establish actual permanence in the transfer of the location of a motor vehicle. We are, however, satisfied that the trial court was warranted upon the record in the instant case in deciding that Mr. Bleich brought the car here for temporary purposes only, and at no time intended to have the car remain here permanently. In at least six different portions of his testimony, Mr. Bleich expressly referred to his firm and continuous intention to take the car back to Florida rather than to remain with it permanently in Wisconsin. In this respect, his testimony is entirely consistent with that of Mr. Abbaticchio, the representative of the Associates Discount Corporation.
In our view, the circumstances of this case no more establish a removal than they did in the Forgan Case. In the latter case, at page 575, this court examined the same portions of the Uniform Conditional Sales Act and referred to the opinion in In re Bowman (D.C.N Y 1928), 28 F.2d 620, as follows:
"There is other language throughout the opinion to the effect that the word `removal' as contained in sec. 14 of the act relates to `a permanent and continuous removal' rather than a temporary one."
Is the Vendor Entitled to a Judgment for the Value?
The judgment in the case at bar awarded the conditional sales vendor either the recovery of the possession or, at its option, its value of $2,000. The appellant contends that Associates Discount Corporation elected to take only the possession of the car and therefore should not be entitled to a judgment in the alternative for the value. The main thrust of the appellant's position stems from the fact that in its amended complaint the prayer for relief asked only for possession and not for the value. This is claimed to have been an election because in its original complaint the prayer sought recovery of the property or $2,000 as the value thereof.
Since the defendant filed a bond and retained the property pursuant to sec. 265.06, Stats., the plaintiff was entitled to the option of a judgment for the recovery of the possession of the property or for the value thereof. Sec. 270.59. We do not believe that the amendment of the ad damnum clause rose to the dignity of an election. On the declining influence of the ad damnum clause generally, see Note, 50 Marquette Law Review (1966), 167. The plaintiff offered proof as to value, and that evidence would have been wholly immaterial if the appellant were correct in its contention.
There are numerous cases wherein it has been held that pleadings are to be considered as amended to conform to the evidence that was properly before the court. Apfelbacher v. State (1918), 167 Wis. 233, 167 N.W. 244; Mitchell v. Lyons (1916), 163 Wis. 399, 158 N.W. 70; Klaus v. Klaus (1916), 162 Wis. 549, 156 N.W. 963. The plaintiff was not obliged to exercise its option before judgment. Riess v. Delles (1878), 45 Wis. 662. On the record before this court it cannot fairly be said that the amendment of the ad damnum clause foreclosed the plaintiff from exercising the option which it possessed under sec. 270.59, Stats.
By the Court. — Judgment affirmed.