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Sale, $ 92 conditional effect of torneys in an action against one causfailure to make payment.

ing injuries to the property, unless 2. The mere failure of a conditional the order is satisfied. vendee to make his payments on time Trial, & 233 — question for jury

§

– does not change the status of the par

acceptance of order in settlement. ties in the absence of an exercise of

8. Whether or not a conditional the option to declare a forfeiture by

vendor of a chattel accepts an order the vendor.

on the buyer's attorney in an action Sale, $ 92 effect of clause permit- against a stranger for injury to the ting recovery of possession.

property in full settlement of the 3. A clause in a conditional sales amount due, so as to preclude his contract allowing the vendor to retake maintaining an action against the the property is not operative in the wrongdoer, is a question for the jury. absence of affirmative action on his Appeal, § 929 error in instruction. part.

9. It is error to leave to the jury a Sale, & 93 — who bears risk of injury. question depending upon a question

4. The risk of loss or injury to a which the jury under the instruction chattel held under a conditional sale is not in a position to solve. contract by the act of a third person Appeal, $ 936 – failure to follow is upon the buyer in possession.

erroneous instruction. [See 24 R. C. L. 494, 3 R. C. L. Supp. 10. That an instruction which the 1372.]

jury failed to follow was erroneous Sale, § 93

effect of injury to prop- is immaterial, since it is the duty of erty.

the jury to follow instructions wheth5. Upon injury to property held un- er right or wrong. der a conditional sales contract, the Estoppel, § 72 — consent to action by seller may recover from the buyer the vendee. full price due.

11. The mere fact that a conditionParties, $ 47 - right of conditional al vendor gains knowledge of an ac

vendee to recover for injury to tion by the vendee to recover damproperty.

ages for injury to the property and 6. Ā conditional vendee in posses- agrees that he may prosecute it, is sion may, with consent of the vendor, not sufficient to bar the right of the recover from one injuring the prop- vendor to recover for the injury. erty the full amount of the injury. [See 24 R. C. L. 477.] [See 24 R. C. L. 496.]

Negligence, 152 - effect of negli

§ Payment, 7 – order on third person. gence of conditional vendee.

7. The debt of a conditional vendee 12. Negligence of a conditional for the purchase price of the prop- vendee will not bar an action by the erty is not discharged by an order vendor against a stranger for injury given by the purchaser upon his at- to the property.

APPEAL by defendant from a judgment of the District Court for Silver Bow County (Jackson, J.) in favor of plaintiff in an action brought to recover damages for injury to his automobile alleged to have been caused by the negligent operation of a train over the railroad tracks of the defendant company. Reversed.

The facts are stated in the opinion of the court.

Messrs. I. Parker Veazey, Jr., W. L. apolis & V. R. Co. 105 Ind. 55, 4 N. E. Clift, R. H. Glover, and H. C. Hopkins, 410. for appellant:

Plaintiff was bound by the settleThe contributory negligence of the ment between Massi and the railway bailee may be imputed to the bailor.

company. Illinois C. R. Co. v. Sims, 77 Miss. 24 R. C. L. 496; Lord v. Buchanan, 325, 49 L.R.A. 322, 27 So. 527; 20 R. C. 60 Vt. 320, 60 Am. St. Rep. 933, 37 Atl. L. 150; Smith v. Smith, 2 Pick. 621, 13 1048; Aldrich v. Hodges, 164 Mass. Am. Dec. 464; Puterbaugh v. Reasor, 570, 42 N. E. 107; Stotts v. Puget 9 Ohio St. 484; Forks Twp. v. King, Sound Traction, Light & P. Co 94 84 Pa. 230; Texas & P. R. Co. v. Tank- Wash. 339, L.R.A.1917D, 214, 162 Pac. ersley, 63 Tex. 57; Welty v. Indian- 519; Louisville & N. R. Co. v. Duncan,

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(70 Mont. 346, 225 Pac. 808.) 16 Ala. App. 520, 79 So. 513; Smith v. trary to the instructions of the court, Louisville & N. R. Co. 208 Ala. 440, the cause must be reversed. 94 So. 489; Harter v. Delno, 49 Cal. King v. Lincoln, 26 Mont. 157, 66 App. 729, 194 Pac. 300; Wheeler & W. Pac. 836; Allen v. Bear Creek Coal Co. Mfg. Co. v. Teetzlaff, 53 Wis. 211, 10 43 Mont. 269, 115 Pac. 673; McAllister N. W. 155; Leaf v. Reynolds, 34 Idaho, v. Rocky Fork Coal Co. 31 Mont. 359, 643, 203 Pac. 458; Teter v. Thompson, 78 Pac. 595; Murray v. Heinze, 17 57 Cal. App. 329, 207 Pac. 262; Chi- Mont. 353, 42 Pac. 1057, 43 Pac. 714; cago R. I. & P. R. Co. v. Earl, 121 Ark. Harrington v. Butte Miner Co. 48 514, 181 S. W. 925; Ann. Cas. 1917D, Mont. 550, 51 L.R.A.(N.S.) 369, 139 552.

Pac. 451, Ann. Cas. 1915D, 1257 ; Massi's own gross negligence, and Smith V. Barnes, 51 Mont. 202, 149 not any slight negligence on the part Pac. 963, Ann. Cas. 1917D, 330; De of the railway company,

the Young v. Benepe, 55 Mont. 306, 176 proximate cause of the collision.

Pac. 609; Friesen v. Hart-Parr Co. 64 Keith v. Great Northern R. Co. 60 Mont. 373, 209 Pac. 986. Mont. 505, 199 Pac. 718; George v. Mr. N. A. Rotering, for respondent: Northern P. R. Co. 59 Mont. 162, 196 A bailor is not barred by the conPac. 869; Wabash R. Co. v. Huels- tributory negligence of a bailee. The mann, 290 Fed. 165; Atchison, T. & bailee is neither the agent nor servS. F. R. Co. v. McNulty, 285 Fed. 97; ant of the bailor, and for that reason Delaware, L. & W. R. Co. v. Welshman, the rules obtaining as to master and L.R.A.1916E, 816, 143 C. C. A. 358, 229 servant or principal and agent have Fed. 82; Union P. R. Co. v. Rosenwa- no application. ter, 15 L.R.A.(N.S.) 803, 84 C. C. A. Van Zile, Bailm. § 128; Edwards, 616, 157 Fed. 168, 13 Ann. Cas. 851; Bailm. 3d ed. 1893, § 392; Gibson v. Lake Shore & M. S. R. Co. v. Frantz, Bessemer & L. E. R. Co. 27 L.R.A. 127 Pa. 297, 4 L.R.A. 389, 18 Atl. 22; (N.S.) 689, and note, 226 Pa. 198, 75 Ellis v. Boston & M. R. Co. 169 Mass. Atl. 194, 18 Ann. Cas. 535; Currie v. 600, 48 N. E. 839; Greenwood v. Phila- Consolidated R. Co. 81 Conn. 383, 71 delphia, W. & B. R. Co. 124 Pa. 572, 3 Atl. 356; Alabama G. S. R. Co. v. L.R.A. 44, 10 Am. St. Rep. 614, 17 Atl. Clarke, 145 Ala. 459, 39 So. 816; Sea 188; Romeo v. Boston & M. R. Co. 87 Ins. Co. v. Vicksburg, S. & P. R. Co. Me. 540, 33 Atl. 24; Smith v. Wabash 17 L.R.A.(N.S.) 925, 86 C. C. A. 544, R. Co. 141 Ind. 92, 40 N. E. 270; Penn- 159 Fed. 676; New Jersey Electric R. sylvania R. Co. v. Pfuelb, 60 N. J. L. Co. v. New York, L. E. & W. R. Co. 61 278, 37 Atl. 1100, 3 Am. Neg. Rep. 433, N. J. L. 287, 43 L.R.A. 854, 41 Atl. 61 N. J. L. 287, 41 Atl. 1116; Blount v. 1116; 6 C. J. 1168; Spelman v. Delano, Grand Trunk R. Co. 9 C. C. A. 526, 22 177 Mo. App. 28, 163 S. W. 300; Kellar U. S. App. 129, 61 Fed. 375; Boutell v. Shippee, 45 Ill. App. 377; 3 R. C. L. v. Michigan C. R. Co. 133 Mich. 486, 147. 95 N. W. 568; Rangeley v. Southern R. Plaintiff was not bound by the alCo. 95 Va. 715, 30 S. E. 386; Tyler v. leged settlement between Massi and Old Colony R. Co. 157 Mass, 336, 32 defendant. N. E. 227; Cadwallader v. Louisville, Smith v. Willoughby, 24 N. D. 1, 138 N. A. & C. R. Co. 128 Ind. 518, 27 N. E. N. W. 7; French v. Osner, 67 Vt. 427, 161; Wallace v. Chicago, M. & P. S. R. 32 Atl. 254; Ross v. Thomas, 24 Cal. Co. 48 Mont. 427, 138 Pac. 499; An- App. 734, 142 Pac. 102; Peterson v. dree v. Anaconda Copper Min. Co. 47 Chess, 92 Wash. 682, 159 Pac. 894. Mont. 554, 133 Pac. 1090; Shaw v. The testimony given was sufficient New Year Gold Mines Co. 31 Mont. to carry to the jury the question of 138, 77 Pac. 515; Monson v. La France the negligence of the railroad comCopper Co. 39 Mont. 50, 133 Am. St. pany. Rep. 549, 101 Pac. 243; Westlake v. Gibson v. Bessemer & L. E. R. Co. Keating Gold Min. Co. 48 Mont. 120, 226 Pa. 198, 27 L.R.A.(N.S.) 689, 75 136 Pac. 38; Page v. New York Realty Atl. 194, 18 Ann. Cas. 535; 33 Cyc. Co. 59 Mont. 305, 196 Pac. 871; Smith 946; New Jersey Electric R. Co. v. v. Chicago M & St. P. R. Co. 61 Mont. New York, L. E. & W. R. Co. 61 N. J. 471, 202 Pac. 766; Stanhope v. Ekala- L. 287, 43 L.R.A. 854, 41 Atl. 1116; ka Teleph. Co. 65 Mont. 599, 212 Pac. Pulcino v. Long Island R. Co. 125 App. 287.

Div. 629, 109 N. Y. Supp. 1076, afWhere the verdict of the jury is con- firmed in 194 N. Y. 526, 87 N. E. 1126. Per curiam:

chaser to said seller hereunder shall This action was instituted by the remain the sole property of said plaintiff to recover for an injury to seller, and shall be considered as an Essex automobile the sum of compensation for the use of said au$1,300, because of the alleged negli- tomobile by said purchaser." gent operation of a train over the From the evidence it is clear that railroad tracks of the defendant at the time of the accident Massi, company in the city of Butte. The the purchaser, was in the actual cause was tried to a jury which physical possession of the automorendered a verdict in plaintiff's fa- bile; also that plaintiff had not devor for $1,000. Judgment was en- clared a forfeiture, nor is there any tered upon the verdict, and the ap- evidence that he intended to do so. peal is from the judgment.

And it appears that plaintiff never It appears that on the 6th day of took possession or asserted the right August, 1920, the plaintiff sold to of possession of the automobile aftLouis Massi the automobile at the er its delivery to Massi until after agreed price of $1,593.29, upon a

the accident. conditional sale contract which was On November 17, 1920, Massi befiled for record in the office of the gan suit against the railway comcounty clerk of Silver Bow county pany for the sum of $1,985 on acon the next day. By the terms of count of damages to this automobile. the agreement Massi paid $650 to While the suit was pending, plainplaintiff upon the signing thereof, tiff, then knowing that Massi was receipt of which was acknowledged maintaining the suit, had two conThe balance payable was $943.29 as versations with L. P. Donovan, one follows: $104.81 one month after of Massi's attorneys in the case, as date, and a like amount in two, he, plaintiff, "wanted some arrangethree, four, five, six, seven, eight, ments made for his protection," acand nine months. Possession of the cording to Mr. Donovan's testimony. automobile was delivered to the pur- The result was that Massi, in the chaser, who agreed not to sell, at- presence of plaintiff, gave to Nolan tempt to sell, or otherwise dispose of & Donovan an order in writing for the same, nor to permit it to be re- $666.44, being the amount then due moved from his possession. In 19 him from Massi upon the purchase of the agreement it was "distinctly price of the automobile.

Subseunderstood and agreed that, should quently the case of Massi against said purchaser fail to make any of the railway company was settled; the said payments to said seller, or the defendant company paying to should said purchaser fail to perform Messrs. Nolan & Donovan, as any of the terms or conditions there- Massi's attorneys, the sum of $800, of in the manner and within the which, after deducting their fees, time herein provided for, said seller they turned over to Massi. may declare the entire purchase The first question which presents price due and payable without no- itself is whether in view of the foretice, and may take immediate pos- going facts the plaintiff has a right session of said automobile, attach- to maintain this action, ments, accessories, and equipment, Whether Massi had made all of and in either or both events all the the payments required of him, a rights, titles, and equities of said subject somewhat purchaser in and to said automobile doubtful upon the effect of fail

Sale-conditional shall immediately cease and deter- record, it is clear ure to make mine, and said seller shall be re- that plaintiff had leased from all obligation to trans- not declared a forfeiture. The mere fer or deliver said automobile to failure of a conditional vendee to said purchaser, and all sums of make his payments on time does money theretofore paid by said pur- not change the status of the par

of conditional

(70 Mont. 346, 225 Pac. 808.) ties in the absence of an exer- being obligated to pay the full price cise of the option to declare a to the seller, may forfeiture by the vendor. The bring action against Parties-right clause in the contract allowing the tort-feasor and vendee to rethe vendor to retake recover as damages

cover for injury -effect of clause

to property. permitting the property is not

the full value of the recovery of operative in the ab

chattel. Williston, Contr. § 965; possession.

sence of affirmative Williston, Sales, $$ 304, 333. action on his part. See Wheeler & There is no doubt that with plainW. Mfg. Co. v. Teetzlaff, 53 Wis. tiff's knowledge and express consent 211, 10 N. W. 155; Leaf v. Reynolds, Massi was free to pursue his action 34 Idaho, 643, 203 Pac. 458; Teter against the defendant for a recovery v. Thompson, 57 Cal. App. 329, 207 of all the damages following from Pac. 260. It follows that at the time

the alleged tort. Massi's obligation of the accident Massi had the legal

was then to pay to plaintiff the right to the possession of the auto- fruits of the litigation to the extent mobile. That as conditional vendee

of the amount due on the contract; he had the right to maintain his ac- but whether the order given by tion is beyond question. 24 R. C. Massi on Nolan & Donovan was reL. 496.

ceived and accepted by plaintiff in The law applicable to seller and

full settlement of the amount due buyer under a conditional sale con

him may not be determined upon tract is well settled. The risk of

this record. It is fair to infer that, loss or injury to the chattel from if Massi did not rea third person falls

cover from the rail- Payment-order —who bears

on third person. risk of injury. upon the buyer in

way company, his possession, who has

debt to plaintiff would not be disthe beneficial incidents of title.

incidents of title. charged by the order. It is also posThe seller is under no obliga- sible to infer from the record that tion to reclaim or retake the dam- plaintiff simply took the order as aged chattel; he has done all he

additional security for the amount was to do, except to receive pay- due him from Massi; he had rement of the purchase price. The

served title in himself as security. purchaser has received all that he

The automobile had been destroyed; was to receive as the consideration

having but $200 salvage value. The of his promise to pay. ConsequentConsequent plaintiff had

the ly, the seller is allowed to recover right to sue the rail- Parties-right of.

from the buyer the -effect of injury full price due, less

way company for vendor to reto property.

the amount of the to property.

cover for injury instalments paid. purchase price still The conditional vendor has a right due him. Whether the plaintiff acof action for damages upon the ob- cepted the order in full settlement ject of the sale whether the tort

of the amount due him, and, as a feasor be the conditional vendee or

consequence thereof, whether he a third person. But the measure of was estopped from suing the railthe vendor's damages in such case is way company, was only the amount of the price unpaid,

Trial-question a question which

for jury-acceptnot, however, exceeding the value of should have been ance of order the goods. Williston, Sales, $ 333; submitted to

the Elder v. Woodruff Hardware & Mfg. jury for their determination, under Co. 9 Ga. App. 484, 71 S. E. 806; proper instructions. Higdon v. Garrett, 163 Ala. 285, 50 If the order given by Massi on So. 323; Loughlin v. Brassil, 187 N. Nolan & Donovan constituted a setY. 128, 79 N. E. 854. The condi- tlement between plaintiff and Massi tional buyer having the risk, and as upon an account stated, and plain

conditional

in settlement.

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instruction.

tiff so accepted it, that would have sales contract, but whether at the constituted payment as much as time of the accident Massi had a though Massi had executed his

executed his right to the legal possession thereof promissory note to plaintiff and was a question of law which the plaintiff had accepted it in settle- jury, in view of the instructions giv

, ment of the balance due. Valley en, was not in a

Appeal-error Mercantile Co. v. Bailey, 68 Mont. position to resolve.

in instruction. 79, 216 Pac. 789. That would have That Massi had conferred upon Massi the full right made a settlement with the defendof ownership of the property for ant company was conceded, but the purpose of his action against whether the settlement was binding the defendant, and, under those cir- upon the plaintiff depended upon one cumstances, plaintiff would have be- of two propositions—whether the come barred of his independent giving and receiving of the order right of recovery from the defend- lodged with Massi the sole right of ant. 24 R. C. L. 476; Carolina, C. recovery for the alleged tort, or & O. R. Co. v. Unaka Springs Lum- whether plaintiff had authorized ber Co. 130 Tenn. 354, 170 S. W. Massi to make the settlement. How591 ; Smith v. Gufford, 36 Fla. 481, ever, since, so far as this record 51 Am. St. Rep. 37, 18 So. 717; Lord is concerned, Massi had a right to v. Buchanan, 69 Vt. 320, 60 Am. St. the legal possession of the car, the Rep. 933, 37 Atl. 1048; Logan v. verdict of the jury was directly Wabash Western R. Co. 43 Mo. App. against this instruction. That it 71.

does not correctly

-failure to It is well to note here that it can

state the law would follow erroneous not be determined from the record make no difference, whether the amount paid Massi by

for it is the duty of the jury to folthe defendant company was the full

low the instructions of the court value of the automobile at the time

whether they be right or wrong. of the accident.

King v. Lincoln, 26 Mont. 157, 66 In this condition of the record the Pac. 836; Allen v. Bear Creek Coal court gave instruction No. 14, which Co. 43 Mont. 269, 115 Pac. 673; De reads as follows: “You are in- Young v. Benepe, 55 Mont. 306, 176 structed that, if you find from the Pac. 609. evidence that the plaintiff in this ac- Instruction No. 19 is as follows: tion transferred the possession of “You are instructed that if you find the automobile to Louis Massi under from the evidence that Lacey, after a conditional sales contract, and that the institution of the suit by Massi at the time of the accident Massi against the defendant for damage was in such possession and had the

to the automobile involved in this right to the legal possession of the action, became aware of the pendcar, and that Massi thereafter and ency of said suit by Massi, and following the accident made a set- agreed that Massi should prosecute tlement with the defendant for dam- said action against the railroad comages to the automobile from the col- pany as the owner, conditional venlision mentioned, then you are in- dee, or pretended owner, of said structed that the settlement made automobile, and that the action by by Massi is binding upon the plain- Massi against the defendant railtiff, and the plaintiff cannot recover, way company was thereafter comand your verdict must be for the de- promised and settled by Massi, then fendant."

the plaintiff is bound by said comThis instruction is erroneous. It

It promise and settlement, if any, and is conceded that the plaintiff did cannot recover in this action, and transfer the possession of the auto- your verdict must be for the defendmobile to Massi under a conditional ant."

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