Opinion
44832 Record No. 821774
September 6, 1985
Present: All the Justices
Judgment for a used car purchaser is reversed and final judgement entered for the dealer in an action for detinue where the dealer had a contractual right to repossess the vehicle for nonpayment.
Personal Property Sales Contracts — Security Interests — Repossession of Automobiles — Detinue
Plaintiff purchased a used car from defendant, making a down payment of $481.90 and agreeing to make small monthly payments. The dealer retained title to the car and had a security interest in the vehicle under an agreement that authorized repossession in the event of default. Plaintiff missed a payment and the car was repossessed. Plaintiff tendered the late payment but was advised that the debt had been "accelerated" pursuant to the contract and that plaintiff could "redeem" the car only by paying half of the remaining balance on the loan and resuming monthly payments on the rest of the debt. Plaintiff did not make the payment demanded, and defendant resold the automobile. Plaintiff filed an action in detinue. From a judgment for $500, defendant appeals.
1. A detinue action seeks recovery of specific personal property or its value from one who withholds the property from a plaintiff who is a true owner or is lawfully entitled to its possession.
2. Under the parties' agreement here, defendant had the right to repossess the vehicle in the event of a default in payments under the contract; plaintiff did default and hence defendant was in lawful possession of the vehicle. Since plaintiff was not entitled to possession the action for detinue should have been dismissed. Final judgment for defendant will be entered on appeal.
Appeal from a judgment of the Circuit Court of the City of Richmond. Hon. Thomas N. Nance, judge presiding.
Reversed and final judgment.
Denis C. Englisby (Englisby Barnes, on brief), for appellant.
Henry W. McLaughlin, III (Central Virginia Legal Aid Society, Inc., on brief), for appellee.
Marie B. Baxter, appellee, instituted an action in detinue against Broad Street Auto Sales, Inc. (Auto Sales), appellant, to recover possession of an automobile or its alternate value. In this appeal, we decide whether, under the facts presented, detinue will lie.
The facts are undisputed. Auto Sales sold the automobile to Baxter for $1,576.90. Baxter made a $481.90 cash down payment, which left an unpaid balance of $1,095. The sales contract provided for $70 biweekly installment payments on the balance. In the event of a default in the payment of any installment not cured within 10 days, Auto Sales, at its option, could "accelerate the terms of [the] contract and collect from [Baxter] the balance due." Auto Sales retained title to the automobile, and the contract contained a security agreement clause authorizing Auto Sales to repossess the automobile in the event of default.
Baxter did not pay the $70 installment due November 25, 1981, and on December 9, 1981, Auto Sales repossessed the automobile. Following the repossession, Baxter tendered Auto Sales a $70 check which Auto Sales refused. On December 14, 1981, Auto Sales wrote a letter to Baxter stating that it had "accelerated the debt and repossessed the vehicle," that Baxter could "redeem" the automobile by paying one-half of the unpaid balance due ($442.50) and the cost of repossession ($75) within 10 days, and that, if Baxter redeemed the automobile, payments would resume with the next scheduled payment after the date of redemption. Baxter did not pay the amount demanded, and Auto Sales sold the automobile.
On December 21, 1981, Baxter filed this detinue action in the general district court, and she was granted a money judgment. Auto Sales appealed to the circuit court where a trial de novo was conducted. At trial, Auto Sales contended that a detinue action would not lie because the evidence showed conclusively that Auto Sales, and not Baxter, was lawfully in possession of the automobile. Nevertheless, the trial court awarded Baxter a $500 judgment, and this appeal ensued.
The object of a detinue action is to recover specific personal property and damages for its detention. MacPherson v. Green, 197 Va. 27, 32, 87 S.E.2d 785, 789 (1955). The action is employed to recover a chattel from one in possession who unlawfully detains it from either the true owner or one lawfully entitled to its possession. Sinclair v. Young, 100 Va. 284, 287, 40 S.E. 907, 908 (1902). If the specific property cannot be returned, judgment is rendered for its value. Id. However, one cannot sue in detinue and recover for breach of contract. MacPherson, 197 Va. at 32-33, 87 S.E.2d at 790.
In the present case, Auto Sales had the right to repossess the automobile if Baxter defaulted under the contract. Baxter did default, and the automobile was repossessed. Thus, because Auto Sales was in lawful possession of the automobile and Baxter no longer was entitled to its possession, Baxter could not maintain a detinue action. Because the trial court erred in failing to dismiss Baxter's detinue action, we will reverse the judgment and enter final judgment in favor of Auto Sales.
Reversed and final judgment.