Brucker v. Carroll

Upon the undisputed facts in this case, as outlined above, I think the whole question presented is with reference to the meaning of the words “ retaken by the vendor,” appearing in section 65 of the Personal Property Law. I am unable to find any decision bearing directly upon this point, of any court in this state. It is claimed by the defendants that they did not “ retake ” the cycle within the meaning of the law, and that it is in their possession under a special agreement, namely, the arrangement made with the parents of the plaintiff, as some sort of bailees; or, possibly, as trustee for the plaintiff; and that therefore they are excused from making a sale of the cycle within sixty days after it came into their possession.

I do not assume that the word “ retake,” as contained in the statute, necessarily includes every possible state of facts under and by which the article sold conditionally may come back to the possession of the vendor. I think it should' be fairly held to mean to include those cases only in which possession is resumed under the contract of conditional sale. Nor is it necessary in all cases that physical possession should be taken by the vendor. Crowe v. Liquid Carbonic Co., 208 N. Y. 396.

*415The question, I think, is one of intent. For instance, it seems to me that the vendee might bring the article back to the vendor for storage or repairs, which, I think, would not constitute a “ retaking,” but would be “an unrelated act.” Moneyweight Scale Co. v. Mehling, 69 Misc. Rep. 333.

I think that, in the case at bar, receiving the cycle by these defendants was not in the first instance a ‘ ‘ retaking. ’ ’ It was done under an agreement with the parents. Neither do I think there was error in admitting the defendants’ account of the circumstances under which they came into possession of the cycle. They had “ a right to show how and under what circumstances it was retaken.” White v. Gray’s Sons, 96 App. Div. 156.

Nor was it necessary to receive evidence of the subsequent conversation between the defendants and the father. I will assume that he also concurred in the arrangement. However, some two weexs thereafter the plaintiff himself saw one of the defendants and demanded his cycle, which demand was refused. I thing the decision of this case hinges upon the question of whether the defendants have been able to justify that refusal. It is conceded by the pleadings that the plaintiff had himself made the contract and the payments upon it, and there is no dispute but that he was during all that time a minor. The excuse given by the defendant for his refusal was that the cycle was not paid for, but that excuse is untenable. Can he rely upon the arrangement with the .parents ? This brings us to a consideration of the rights of the parents to interfere with personal property belonging to their minor children. Apparently the plaintiff earned the money that was paid to defendants, and it is admitted that it was paid by him under a contract made *416by him. I am unable to find any authority for the proposition that, under such circumstances, mere proof of parentage is sufficient to warrant interference on the part of the parents with the property of their minor children. If defendants saw fit to deal with some one other than their customer, I think the burden is upon them of showing authority in those they' dealt with. They haven’t undertaken to prove agency, and rely upon the bald fact of parentage. I think they might justly, if not legally, rely upon that fact as a matter of justification for taking the cycle in the first instance. I do not think under the circumstances the taking was tortious, but when their customer himself appeared and demanded his cycle there is no conceivable legal ground for their refusal except that they held it under their contract. In fact, that was apparently the reason given by the elder Carroll. “ The machine is not paid for, and you cannot have it,” is what plaintiff claims he said, and Mr. Carroll has not denied it. It seems to me that this refusal on the part of Mr. Carroll must be deemed to constitute a “retaking ” under the contract. The consent of the parents is an insufficient ground for refusal, and it was not even invoked. It does not appear that any repairs had been made upon the machine at that time, and the defendants are apparently without any other legal excuse or justification for. withholding the cycle from the plaintiff. I think his 'demand of possession and their refusal of it must be deemed to constitute in law a 1 ‘ retáking ’ ’ under the statute, and as defendants concededly had not sold the cycle, and more than sixty days had elapsed prior to the commencement of the action, I am unable to see how the defendants can avoid -the penalty of the statute, harsh though it is. The foregoing views are confirmed by a reference to *417some correspondence occurring some months after the cycle had come into defendants’ possession, which make it quite clear that defendants were standing upon their supposed rights under the contract, or, possibly, under that made with the parents. As they were in default upon the one, and have established no authority upon the other, I think they were standing upon untenable ground. The plaintiff is, therefore, entitled to judgment for the amount claimed. Findings and judgment may be prepared accordingly.

Judgment accordingly.