Reinkey v. Findley Electric Co.

PER Cueiam. Action to recover damages for the wrongful taking of certain personal property sold by the defendant to the plaintiff on a contract of conditional sale. The court directed a verdict for the defendant and the plaintiff appeals from the order denying her motion for a new trial. 1. On July 15, 1918, the defendant sold to the plaintiff by a conditional sale contract which reserved title and provided for a forfeiture of payments in case the property was retaken, an electric washer and iron-er for $255, the price of the washer being put at $140 and the price of the ironer at $115. Payments were made to the amount of $60 and plaintiff- was in default. It was finally agreed that the washer should be returned and the ironer retained. A memorandum was made whereby the plaintiff agreed to pay $50 by December 23, 1918, leaving a balance of $25 unpaid. On December 24, the $50 being unpaid, the defendant took possession of the ironer. The plaintiff claims that on December 23 the defendant extended the payment to December 26 and she relied upon the extension of time.' De *163 fendant denies this. The evidence made an issue of fact. There was no consideration for the extension. None was necessary. The defendant is seeking to enforce a forfeiture of the payments made and absolute title to the property sold. It cannot make nonpayment which it induced by an agreement to extend time, though the agreement is without consideration, a ground of forfeiture. The doctrine may be rested upon the ground of estoppel or of waiver. The principle is announced in Scheerschmidt v. Smith, 74 Minn. 224 , 77 N. W. 34 . It is applied the country over to cases within the statute of frauds where there is an oral extension of time of performance and a forfeiture claimed because the extension was not in writing. This situation was involved in the case just cited. The court, applying the principle, held that a forfeiture could not be invoked, and it said that the claim that “there was no consideration for the promise to extend the time of payment” was covered by what was said about an oral extension within the statute of frauds. 3. The plaintiff had a remedy by replevin which would have restored her property. She had a remedy by an action of conversion which would have given her full money compensation. There is excellent authority for holding that, when the vendor in a conditional sale contract wrongfully takes’possession of the property, the vendee may treat the contract as rescinded and recover the payments made. Bray v. Lowery, 163 Cal. 256 , 124 Pac. 1004 ; Madison River Livestock Co. v. Osler, 39 Mont. 244 , 102 Pac. 325 , 133 Am. St. 558; Rhodes v. Jenkins, 2 Ga. App. 475 , 58 S. E. 897 . Cases adopting this doctrine seem to hold that the amount of the payments should be reduced by the value of the use and in a proper case by a charge for depreciation. Rhodes v. Jenkins, 2 Ga. App. 475 , 58 S. E. 897 ; Bray v. Lowery, 163 Cal. 256 , 124 Pac. 1004 . In other jurisdictions the wrongful taking is treated as a conversion for which damages appropriate to an action of conversion may be recovered. Smith v. Goff, 29 R. I. 439, 72 Atl. 289 ; Clark v. Clement, 75 Vt. 417 , 56 Atl. 94 ; Goggan v. Garner (Tex. Civ. App.) 119 S. W. 341 . The cases treating the vendee’s wrong as a rescission are in some confusion, in part because of the different views obtaining as to the nature of a conditional sale contract, and the measure of damages which they adopt is sometimes difficult of application. Treating the vendor’s taking as a *164 wrong, for which trover lies, is in harmony with onr holdings upon the right of a chattel mortgagor to recover in conversion from bis mortgagee who has wrongfully retaken the mortgaged property. 1 Dunnell, Minn. Dig. § 1474, and cases cited. .It affords a definite and adequate remedy. We hold that the vendee, in a- situation such as is presented to us, cannot recover the payments made but must recover, if he seeks damages alone, in conversion. 3. The complaint did not allege damages for a conversion nor was there proof. There was no allegation nor proof of value. Upon plaintiff’s evidence, if found true by the jury, there was a conversion but no actual damages. Malice was not alleged nor proved. There were no aggravating circumstances attending the taking. There could be no recovery for humiliation or injured feelings. 1 Dunnell, Minn. Dig. § 2526. The plaintiff was entitled to no more than nominal- damages. .There has been no right of recovery in this state for injured feelings in breach of contract actions since the decision of this court in the case of Francis v. Western Union Tel. Co. 58 Minn. 252 , 59 N. W. 1078 , 25 L.R.A. 406 , 49 Am. St. 507. The decision there rendered has uniformly since been followed and applied. Beaulieu v. Great Northern Ry. Co. 103 Minn. 47 , 114 N. W. 353 , 19 L.R.A. (N.S.) 564, 14 Ann. Gas. 462; Independent Grocery Co. v. Sun Ins. Co. 146 Minn. 214 , 178 N. W. 582 . It expresses the rule prevailing in the great majority of the jurisdictions of this country, the only exceptions being in eases where a personal injury has been inflicted in the enforcement of a contract right, or the breach of the contract is of a character to amount to an independent wilful tort. 8 R. C. L. 529, § 83. The case at bar is not claimed to be within the exception. Rauma v. Bailey, 80 Minn. 336 , 83 N. W. 191 , is not in point. There the defendants, one of whom was a town constable, assuming to act under the authority of a writ of restitution .issued by a court having jurisdiction, forcibly ejected plaintiff from his residence, removing his household goods and effects into the street. The writ was void on its face and furnished no justification for the acts of defendants. They were therefore naked trespassers and wrongdoers, and liable under the rule of damages applicable to wrongs of that kind. It was an action in tort, no contract right was involved, as in the case at bar, and none was *165 relied upon in defense, the sole defense being an attempted justification under the void writ of restitution. 4. A new trial will not be granted by this court, where no question of permanent right is involved, where the adjudication affects “the parties only as it determines damages, and where a new trial could result in an award of no more than nominal damages, because of a failure to submit the case to the jury for an assessment of nominal damages, if it should find from the evidence a right of recovery. Knowles v. Steele, 59 Minn. 452 , 61 N. W. 557 ; Erickson v. Minnesota & O. P. Co. 134 Minn. 209 , 158 N. W. 979 , and cases reviewed; 2 Dunnell, Minn. Dig. § 7074, and cases cited. This ease is not within an exception to the rule. No statutory costs. Order affirmed.