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Plaintiffs for their second cause of action allege that they purchased and attached to said automobile accessories of the value of $105.15 and repeat the allegation quoted above. Defendant answered, admitting the sale, setting out the written contract as an exhibit to its answer, and alleges: "In this connection the defendant alleges that it took possession of the said automobile and of the property attached thereto under and by virtue of the said contract, exhibit A; that any and all property or accessories which the defendant placed upon said automobile were in or attached thereto when the possession was taken; that possession was taken by reason of the failure and refusal of plaintiffs to carry out the terms of said contract, and was rightfully and lawfully taken and in accordance with the terms of said contract."

The affirmative matter in the answer was put in issue by a reply. The case was tried to a jury, which returned a verdict in favor of plaintiffs for $400, and defendant appeals from the judgment entered on said verdict. Defendant assigns as error the court's refusal to nonsuit plaintiffs and return a verdict in favor of the defendant. Those parts of the contract pertinent to the issues in this court and other facts necessary to understand our decision will be set out in the opinion.

Messrs. Walter G. Hayes and Clark, Skulason, & Clark, for appellant:

Conditional sales contracts are valid in this state, and will be enforced according to their terms.

Francis v. Bohart, 76 Or. 1, L.R.A. 1916A, 922, 143 Pac. 920, 147 Pac. 755; Herring-Marvin Co. v. Smith, 43 Or. 315, 72 Pac. 704, 73 Pac. 340; First Nat. Bank v. Yocom, 96 Or. 438, 189 Pac. 220; Jefferies v. Pankow, 112 Or. 439, 223 Pac. 745, 229 Pac. 903.

There can be no recovery on, or of anything received under, the original contract between the parties, upon al

legation of a new contract and the breach thereof.

Pfeiffer v. Norman, 22 N. D. 168, 38 L.R.A. (N.S.) 891, 133 N. W. 97.

Waiver, rescission, abandonment, estoppel, must be pleaded to be avail

able as an element either of a cause of action, or of a defense.

Long Creek Bldg. Asso. v. State Ins. Co. 29 Or. 574, 46 Pac. 366; Hannan v. Greenfield, 36 Or. 102, 58 Pac. 888; Maynard v. Lange, 71 Or. 560, 143 Pac. 648, Ann. Cas. 1916E, 547; Annand v. Austin, 86 Or. 403, 167 Pac. 1017, 168 Pac. 725; Case v. McKinnis, 107 Or. 224, 22 A.L.R. 167, 213 Pac. 422.

The accessories attached to the car by plaintiffs went with the car by the terms of the contract and by the doctrine of accession, and became the property of defendant upon repossession of the car.

Berry, Auto. 4th ed. § 154; 1 R. C. L. 117; Blackwood Tire & Vulcanizing Co. v. Auto Storage Co. 133 Tenn. 515, L.R.A.11916E, 254, 182 S. W. 576, Ann, Cas. 1917C, 1168.

Mr. Will H. Masters, for respondents:

Plaintiffs had paid part of the purchase price of said automobile, and had a special property by reason thereof in the automobile, capable of being transferred.

24 R. C. L. 498; Christenson v. Nelson, 38 Or. 473, 63 Pac. 648; Pelton Water Wheel Co. v. Oregon Iron & Steel Co. 87 Or. 248, 170 Pac. 317; Dame v. C. H. Hanson & Co. 212 Mass. 124, 40 L.R.A. (N.S.) 873, 98 N. E. 589, Ann. Cas. 1913C, 329.

The provisions in a conditional sales contract for forfeiture are inserted in said contract for the purpose of providing security to the vendor for the payment of the purchase price, and where such provisions are not selfexecuting, the vendee may still pay the balance of the purchase price, or perform the other stipulated acts, and retain the automobile which he received under the contract.

Williston, Sales, 2d ed. § 579; 35 Cyc. 700, 701; Mechem, Sales, § 606; Sunny South Lumber Co. v. Neimeyer Lumber Co. 63 Ark. 268, 38 S. W. 902; Leaf v. Reynolds, 34 Idaho, 643, 203 Pac. 458; Pease v. Teller Corp. 22 Idaho, 807, 128 Pac. 981; Wheeler & W. Mfg. Co. v. Teetzlaff, 53 Wis. 211, 10 N. W. 155; Vaughn v. McFadyen, 110 Mich. 234, 68 N. W. 135.

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Where no declaration of forfeiture has been made by the vendor, the vendee is entitled to the possession of the automobile.

Burdick v. Tum-A-Lum Lumber Co. 91 Or. 417, 179 Pac. 245.

Plaintiffs, having paid part of the purchase price of the automobile, had an equitable interest in it which was not absolutely cut off by the act of the vendor in retaking possession.

McDaniel v. Chiaramonte, 61 Or. 403, 122 Pac. 33; Manley Auto Co. v. Jackson, 115 Or. 396, 237 Pac. 982.

Under the pleadings plaintiffs waived any tort of defendant, and accepted the rescission of the contract by it, and brought their action for money had and received to recover the money paid to defendant on the purchase price of the automobile.

Graham v. Merchant, 43 Or. 294, 72 Pac. 1088; Maffet v. Oregon & C. R. Co. 46 Or. 443, 80 Pac. 489; Massey v. Becker, 90 Or. 461, 176 Pac. 425.

Coshow, J., delivered the opinion of the court:

Sale-condition -provision for adjustment of differences.

Parties to a conditional contract of sale may specify the terms of adjusting their differences in case the buyer becomes delinquent. It is not necessary for the seller to resort to court in order to repossess the automobile

property.

and sell the same -right to retake where the contract authorizes the seller so to do. Standring v. Gordon, 118 Or. 339, 345, 346, 246 Pac. 361. The contract in the instant case provides: "In case of default in the payment of any amount due as above provided, or if the

undersigned shall be guilty of any breach of any of the other agreements of the undersigned herein, the second party is authorized to enter any place where said property may be found, and take and remove the same, or any property found in or attached to said property, and retain all of the same, and likewise

retain all sums paid in part performance of this contract, as compensation for any depreciation or other expense arising on account of dersigned, and as payment for the the use of said property by the unuse of said property, and as liquidated damages for breach of this agreement, and elect any legal or equitable remedy for recovering the balance of the purchase price.'

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The "undersigned" referred to in the foregoing excerpt are the plaintiffs and the "second party" is the defendant. When the defendant, therefore, took the car in its possession and canceled its contract with the plaintiffs for the sale of said automobile, defendant elected its remedy for the delinquency of plaintiffs under the authority of Standring v. Gordon above. This closed the transaction. Defendant became the owner -effect of reposof the car freed session of propfrom the equity of plaintiffs therein. Plaintiffs forfeited their interest in the car and all other rights under the contract of purchase. The contract of purchase was introduced by plaintiffs as a part of their case and shows on its face that it was canceled on the day after plaintiffs claim the car was taken from them by defendant.

erty.

This court has twice or more adopted as the law in this state under contracts of sale the rule laid down in 1 Mechem, Sales, § 615. Defendant exercised its option designated No. 1 in that rule, which reads as follows: "(1) He may

treat the contract as rescinded upon default of the buyer and recover the goods. In that event, that is his only remedy." Francis v. Bohart, 76 Or. 1, 5, L.R.A.1916A, 922, 143 Pac. 920, 147 Pac. 755; McDaniel v. Chiaramonte, 61 Or. 403, 122 Pac.

33.

Plaintiffs rely upon a claim that defendant promised to hold the automobile after it repossessed itself thereof as security for the unpaid purchase price. Plaintiffs claim that defendant so promised to hold said automobile for plaintiffs until

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the 10th day of September. They allege in their complaint that this promise was made for a valuable consideration. Careful reading of the testimony, however, fails to disclose any consideration for the alleged promise relied upon by plaintiffs. The sole testimony of this feature of the case is an interview between one of the plaintiffs and the president of defendant on a street in the city of Portland. There is no testimony of anything of value having passed between them at that time. Plaintiffs do not claim that they paid any amount as earnest money. If the alleged agreement was supported by any consideration, this court would be found by the verdict of the jury. But, inasmuch as there was no consideration for the promise on the part of defendant to so hold the automobile, its promise cannot hold property as be enforced in law. complaint

Contract-to

security-con- The sideration.

shows on its face that the title thereto was vested in the defendant. This court held, in Jeffries v. Pankow, 112 Or. 439, 223 Pac. 745, 229 Pac. 903, that yielding possession of an article by a delinquent buyer under contract of sale was no consideration for a bailment. Plaintiffs did nothing they were not bound by their contract to do when they surrendered the car to the defendant. There was then no consideration at all for the promise to resell the automobile to the plaintiffs for the unpaid balance of the purchase price. Jeffries v. Pankow is a very similar case to the one at bar and is controlling, so far as the matter of consideration for the alleged promise to hold the car for the benefit of plaintiffs is concerned.

The

Another case relied upon by plaintiffs is Manley Auto Co. v. Jackson, 115 Or. 396, 237 Pac. 982. plaintiff in that case repossessed itself of the automobile which had been sold to defendant under a contract exactly like the one involved in the instant case, in so far as the remedy of the seller is concerned. In addition to taking possession of the

automobile upon the delinquency of the buyer, the seller brought suit to foreclose any interest the buyer had therein; in other words, the seller proceeded under the fourth option of the rule laid down in 1 Mechem, Sales, § 615. Said fourth option reads as follows: "He may, if the contract permits it, without rescinding, take possession of the goods and hold them as security for the fulfillment of the contract."

Defendant could have followed that course in the instant case. Instead it retook possession of the automobile and canceled the contract. It thereby Sale-condiexhausted its reme- tional-exhaustion of remedy. dy against plaintiffs. Plaintiffs ought not to complain because defendant did not hold the car as security for the unpaid purchase price and bring suit to recover on the notes given by plaintiffs, binding them to pay the price of the automobile with the attendant costs and disbursements. That a car depreciates materially when once sold and used

Evidence-judi

tomobile.

is of such common cial notice-deknowledge that the preciation of aucourt may take judicial notice thereof. If the amount of depreciation was involved, proof would be required of the extent of the depreciation. But the court can properly recognize that an automobile materially depreciates when once sold and used. Doubtless, plaintiffs would have been losers if defendant had pursued the course followed by plaintiff in Manley Auto Co. v. Jackson, above. In such procedure plaintiffs would become liable for all costs, disbursements, and expenses, including attorney's fees, incurred in a foreclosure suit and public sale, and also for personal judgment for any amount remaining of the purchase after application of the net proceeds of the sale of the automobile. There is no reasonable probability that the that the automobile would have sold for as much as the balance of the purchase price. In all probability, in addition to losing the amount paid on account of the

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The judgment is reversed, and the case remanded, with directions to this proceed in accordance with opinion.

Rand, Ch. J., and Brown and Belt, JJ., concur.

Petition for rehearing denied November 29, 1927.

ANNOTATION.

Right of conditional seller to retake property without judicial aid.
[Sale, § 92.]

As to liability for assault or trespass in forcibly retaking property sold conditionally, see the annotation. in 9 A.L.R. 1180 [Assault, § 20; Trespass, § 2].

As to the right of the conditional vendor to break and enter for the purpose of retaking possession upon default of the purchaser, see the annotation in 36 A.L.R. 853 [Sale, § 92].

Under an express provision of the contract giving the vendor the right upon default to take possession of the property without resort to legal process, he may do so if he does not commit a breach of the peace or an unlawful trespass. McCarty-Greene Motor Co. v. House (1927) 216 Ala. 666, 114 So. 60; Percifield v. State (1927)

Fla., 111 So. 519; Wilmerding v. Rhodes-Haverty Furniture Co. (1905) 122 Ga. 312, 50 S. E. 100; Flaherty v. Ginsberg (1907) 135 Iowa, 743, 13 L.R.A. (N.S.) 1132, 110 N. W. 1050; Biggs v. Seufferlein (1914) 164 Iowa, 241, L.R.A.1915F, 673, 145 N. W. 507; Mendelson v. Irving (1913) 155 App. Div. 114, 139 N. Y. Supp. 1065; Henderson v. Mahoney (1903) 31 Tex. Civ. App. 539, 72 S. W. 1019.

In McCarty-Greene Motor Co. v. House (Ala.) supra, the court held that although, under a contract giving the vendor the right to repossess the property sold, upon default in payment therefor, without any proceedings in law, the vendor had the right to retake possession, nevertheless it had no right to regain possession by force and arms, nor to employ fraud, deception, trick, or artifice to that end.

Flaherty v. Ginsberg (1907) 135 Iowa, 743, 13 L.R.A. (N.S.) 1132, 110 N. W. 1050, sustained the right of a conditional vendor to retake without judicial process furniture sold under a conditional sale contract, where there had been default in payment of instalments, the contract in the instant case expressly providing that upon default in payment of instalments the vendor should be authorized, without consent or proceedings, to take possession of the property wherever found; but it was pointed out that this right could not be exercised so as to expose the conditional vendee to unreasonable indignity or hardships, and the court observed that if the condition of the vendee's health in the instant case had been such that the taking of the furniture would, to the knowledge of the vendor or its agents, be likely to result in substantial impairment of the vendee's health, by reason of depriving her of a bed, such a taking would not have been legal.

In Biggs v. Seufferlein (1914) 164 Iowa, 241, L.R.A.1915F, 673, 145 N. W. 507, the court apparently recognized the right of the conditional seller to retake, without process of law, the property sold, in case of default on the part of the vendee, especially where it was so provided in the contract; but it is evident that the court would not sanction force in retaking the property under such circumstances without legal process. This is clear from the opinion of the court, wherein it is said: "It is well settled that the mere right to the pos

session of property does not entitle the party to take the same from the one in the actual rightful possession by force or violence. But to recover possession under such circumstances resort must be had to legal proceedings."

In Mendelson v. Irving (1913) 155 App. Div. 114, 139 N. Y. Supp. 1065, where, by the express terms of the contract, title to the property sold was to remain in the vendor until full payment in cash, and the vendor was expressly given the right under the contract to retake the property, with or without legal process, upon default in payments, the court held that the right to take the property without legal process was not lost, if the vendor attempted to retake the property by legal process which subsequently turned out to be void.

In Henderson v. Mahoney (1903) 31 Tex. Civ. App. 539, 72 S. W. 1019, where the conditional vendor of a sewing machine regained possession of it for the purpose of making repairs thereon, the court held that he had the right to retain possession of it until the charges for repairs were paid, and that he also had the right to resume possession of the machine because of the default in payments on the purchase price, the contract expressly reserving in the vendor the right to resume possession of the machine, without resort to the courts, in the event of default in payments thereon. In the following cases, where the contract expressly authorized authorized the vendor to retake the property upon default in payments, and it did not appear from the opinion whether there was any express authorization in the contract to retake without judicial process, a peaceable retaking by the vendor, upon the default of the vendee, apparently without legal process, was held by the courts to be authorized: Swain v. Schild (1917) 66 Ind. App. 156, 117 N. E. 933; Van Wren v. Flynn (1882) 34 La. Ann. 1158; Walsh v. Taylor (1874) 39 Md. 592; Heath v. Randall (1849) 4 Cush. (Mass.) 195; Vorenberg v. American House Hotel Co. (1923) 246 Mass. 108, 140 N. E. 297; LYNCH v. SABLE-OBER

TEUFFER-PETERSON (reported herewith) ante, 180; North v. Williams (1888) 120 Pa. 109, 6 Am. St. Rep. 695, 13 Atl. 723; Abel v. M. H. Pickering Co. (1914) 58 Pa. Super. Ct. 439.

In Swain v. Schild (Ind.) supra, where in a contract of conditional sale it was provided that in case the vendee should make default in payment of any of the instalments the vendor should have the right "without notice or demand" to take immediate possession of the property, the court held that the seller, in the event of default in payment, might peaceably repossess himself of the property sold, and apply payments as rent for the use of such property. And see to the same effect, Vorenberg v. American House Hotel Co. (1923) 246 Mass. 108, 140 N. E. 297, where the contract expressly provided that upon default in payments the vendor could, without demand or notice, or being deemed guilty of trespass or tort, remove the property.

However, in Van Wren v. Flynn (1882) 34 La. Ann. 1158, the court held that an agreement between the conditional vendee and vendor, that the latter should have the right to retake the property upon nonpayment of the price, did not confer upon the vendor the right to enter the house of the vendee in his absence, without his consent and without notice, and carry off the property. The court said: "It conferred, at most, a legal right upon defendant, which, like other rights, could be enforced only with consent of plaintiff, or by legal proc

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The case of Walsh v. Taylor (1874) 39 Md. 592, holds that the conditional vendor upon default may without legal process peaceably enter the premises of the conditional vendee to retake property conditionally sold, and he is not ipso facto guilty of trespass in attempting to exercise such a power, under a contract which provides that he shall have the right to take possession of the goods, wherever the same might be found.

In Heath v. Randall (1849) 4 Cush. (Mass.) 195, the court held that the

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