Gigray v. Mumper

EvaNS, J. —

-The plaintiff sold to the defendant his undivided one-half interest in a certain stock of plumbing tools and materials for the consideration of $200. Of this consideration $25 was to be paid in cash and $10 per month thereafter. The contract of sale reserved to the seller the title to the property until the consideration should be fully paid. The plaintiff claimed that the defendant had made payments to the amount of $85, and no more, and that there was a balance due of $115. The plaintiff averred, however, that the defendant claimed to have paid more and that a less sum was due than claimed by plaintiff, and plaintiff prayed for an adjudication of the question in dispute.

The argument of the appellant is that the plaintiff was entitled to maintain an action at law for the alleged balance of the purchase price, and that, whenever he elected *398 to bring suck action, be waived his title to the property, and that he could enforce no lien thereon. The position is not well taken. It should be noted that the contract imposed a personal liability upon the defendant to pay the full purchase price. Although the contract therefor on its face reserved the title to the property to the seller until it was fully paid for, and gave to the seller a right to declare a forfeiture upon default of payment, such remedy was not exclusive. It is also true that a court of equity has power under some circumstances to declare such a contract a mere security, and to protect the purchaser from unconscionable forfeiture. In this case a large part of the purchase price had been confessedly paid. A dispute existed as to how much balance remained unpaid. The plaintiff waived his right to declare a forfeiture, but asked that, he retain his security for the payment of such balance as should be found to be due. We think his petition stated, a cause of action- that entitled him to a hearing on the equity -side of the court, and the motion to transfer was properly overruled. Whether the refusal of the court to transfer the case to the law side of the docket did preclude the defendant from denying the equity of the bill by his answer, or from claiming therein his right of trial to a jury we need not determine. The defendant did not plead. He stood upon his motion to transfer. For the purpose of that motion the allegations of the petition and the prayer for relief were conclusive upon the court. There was no error in the ruling and the decree is affirmed.