Dederick v. Wolfe

Citations

• 68 Miss. 500

Syllabus

<p>1. CohditiostaIj Sale. Title reserved as security. Retalcing chattel. Power of sale. Rescission.</p> <p>A Ray-press was delivered to defendants, who executed therefor three notes for $150 each, due at one, two, and three years. In each note it was stipulated that the seller retained title, and might, on default in either payment, retake the press, and that “ any amount that may have been paid .... shall he considered payment for use of machinery, .... and nothing shall constitute a defense or offset, or delay prompt payment of this note in full at maturity.” After payment of two notes, on default as to the third, the seller, seeking to enforce payment, took the press by replevin and sued on the note. Thereupon, without any express power of sale, the creditor, by an agent, after giving nine days’ notice by posters and personally informing the debtors, sold the press at public auction for $25, the creditor becoming the purchaser. Held, that this was not a rescission, and that plaintiff was entitled to judgment for the balance due on the note.</p> <p>2. Same. Character of contract. Intent. Resorting to property as security. Suit for balance.</p> <p>In determining the real character of a contract, the court will look to its purpose rather than the name given it. Notwithstanding one clause in the instrument, which, taken alone, has that meaning, the seller could not end the contract by taking possession of the property, treating what he had received as payment for hire. Giving effect to the intention of both parties, the transaction was plainly a sale with reservation of title as security for the price, and resorting to the property as means of securing payment did not preclude recovery on the note.</p>