Sioux Falls Adjustment Co. v. Aikens

McCOY, J.

In this case it appears that appellant agreed to purchase and pay for certain books at the agreed price of $6 per volume, to be thereafter delivered, and such payment to be made on delivery, and which contract contained the provision that title to said books should remain in the seller until paid for. It also appears that 12 of said hooks were delivered to and accepted by appellant, and that four thereof were paid for, and that no payment was ever made on the remaining eight. Respondent as the assignee of the original seller brought this suit to recover the purchase price of the books for which no payment had been made.

Findings and judgment were in favor of plaintiff, and defendant appeals, contending that under the provisions of said contract, providing that title should remain in seller until payment, an action for the recovery of the purchase price 'cannot be main *156 tained, but that plaintiff’s only remedy, if any at all, is under section 2303, Civ. Code, for damages for breach of contract in refusing to accept and pay for personal property, title to which is not vested in the purchaser. We are of the opinion that appellant’s contention is not tenable. The evidence in this case discloses the fact that the books for which recovery was had were delivered by the seller to the purchaser and unconditionally accepted by him prior to the beginning of this action. We are constrained to the view that, where there has been a delivery to and an absolute acceptance by the purchaser, the provisions of said section 2303 are not applicable — that that section only applies where there is a refusal to receive and accept and pay for goods where the title still remains with the seller. This seems to be the general holding of the courts upon this question. Dowagiac Mfg. Co. v. Mahon, 13 N. D. 516 , 101 N. W. 903 ; Acme Food Co. v. Older, 17 L. R. A. (N. S.) 807; Williston on Sales, sec. 580; McCormick Harvesting Machine Co. v. Balfany, 78 Minn. 370 , 81 N. W. 10 , 79 Am. St. Rep. 393 . It seems to be generally held that where there has been a delivery to and an absolute acceptance by the purchaser, an action to recover the purchase price may 'be maintained. Appellant cites and relies on the case of Dowagiac Mfg. Co. v. White Rock Lumber & Hardware Co., 18 S. D. 105, 99 N. W. 854 ; Id., 26 S. D. 374, 128 N. W. 334 . In that case it appeared that certain farm machinery had been delivered to the White Rock Company under an agency or commission contract, and that later a conditional contract sounding both of agency and sale was made, and in that action it was claimed there was no evidence of an acceptance of the property by the White Rock Company as purchasers under the latter contract, conceding the same to have been a sale contract. The only theory upon which the decisions in that case can rest, if the latter contract was a sale contract, is that there was no acceptance of the property by the White Rock Company as purchasers under the latter contract. The authority of that case is not applicable where there has been a delivery to and an acceptance by the purchaser of the property which was the subject of the sale. Where there has been a delivery to and an absolute acceptance of the property by the purchaser, although the contract provides that title shall not pass until the happening of some subsequent event, an action for the purchase price may be *157 maintained, for -in that case it is said the seller waives his right to title under the contract by instituting' the suit for purchase price. Dowagiac v. Mahon, supra; International Harvester Machine Co. v. Pott, supra, page-.

Finding no.error in the record the judgment and order appealed from are affirmed.

SMITH, J.

My views on the question discused in the foregoing opinion are briefly stated in a concurring opinion in International Harvester M. Co. v. Pott, supra. See, also, Williston on Sales, § 579, in which that distinguished jurist throws much light on the subject of conditional sales, and retention of title treated as security.