I dissent upon the grounds stated by the judge of the superior court in an opinion filed by him at the time of giving his judgment in favor of the plaintiff. Said opinion is printed as an appendix to respondent's petition for a transfer of the cause to this court, as follows: —
"The defendants in this case sold an automobile to Miller Taylor, who in turn sold the property to the plaintiff. After the latter sale the defendants made demand upon the plaintiff for the possession of the automobile or the payment of the sum of $132, balance owing and due on the purchase price of the sale to Miller and Taylor, claiming that the original sale was conditional, title remaining in the defendants until the purchase price was fully paid. The demand of the defendants not being complied with, they brought an action of claim and delivery against the plaintiff for the automobile in which they had judgment. The original contract of sale rested in parol under which the final payment was due the 27th day of May, 1906. Within ten days after the rendition of the judgment awarding possession of the automobile to the defendants, the plaintiff tendered to the defendants the sum of $132 and interest, and demanded of defendants the possession of the automobile, which tender was not accepted and which demand was refused. Plaintiff brings this action in conversion and asks judgment for the value of the automobile alleged to be $450.
"The answer of defendants represents that it was a provision of the original contract of sale that, if Thompson and Miller failed to pay the balance on or before the 27th day of May, 1906, the defendants here `would have the right to retake the same (automobile) and that said Thompson and Miller should forfeit all sums of money theretofore paid upon the *Page 465 said purchase price.' The evidence entirely fails to show that there was any agreement of forfeiture.
"The main defense contended for here is that the action of the plaintiff in refusing to deliver the automobile when demand was made upon him after he purchased the same from defendants' vendees and in contesting the action which they brought for possession thereof, amounted to a repudiation of the contract between defendants and Miller and Taylor; that the plaintiff here stands in the shoes of Miller and Taylor and has no rights except what they had under the original contract of sale. Defendants argue that plaintiff has repudiated the contract and that it is a well-known principle of law that where one party to a contract repudiates it, the other party is no longer bound by it, and cites specially the case of Rayfield v. Van Meter, 120 Cal. 416, [52 P. 666], as applicable here. In that case it appears that the defendant purchased of the plaintiff furniture under a conditional contract of sale, the purchase price being payable in installments; that the defendant was in default for a period of about two years; that plaintiff then brought an action for the recovery of possession and the defendant repudiated his contract, and claimed that he had been defrauded by misrepresentation at the time of the purchase of the property, and that nothing further was owing to plaintiff on account of the purchase price. This defense was disallowed by the court. Pending the action the plaintiff resold the property, and it was claimed by defendant that this resale should be construed as a termination of the contract by the plaintiff and defendant sought judgment for the return of the amount of the purchase price which he had paid. The question whether or not defendant was entitled to the return of the purchase price because plaintiff had disposed of the property was the only one passed upon by the court. It was decided that defendant was not entitled to the return of the purchase price for the reason that he had repudiated the contract and absolutely refused to pay anything further thereon, and that plaintiff was then justified in selling the property and not liable to account to defendant for the purchase price paid by him. The defendant in that case was himself in default, not the plaintiff. That case and also the case of Glock v. Howard etc. Colony Co., 123 Cal. 1, [69 Am. St. Rep. 17, 55 P. 713], cited by defendants, are *Page 466 authorities for the proposition that, where the vendor is not in default and the vendee is, the latter may not recover purchase money paid.
"It is doubtful if either of the cases is authority here, for the question in issue is quite different. There is a distinction between repudiation of a contract between parties and a denial of the existence of a contract between one of the parties thereto and a third person who has succeeded to the interest of the other in ignorance thereof. In the one case there is bad faith and a denial of obligations on the one part and of rights on the other. Here, so far as the evidence discloses, there is, and has been, no bad faith on the part of the plaintiff, and the defendants were not justified in considering that he had repudiated the contract. As to him it had not been established until the decision of the court in the replevin case. It rested wholly in parol; no writing evidenced it. It is not surprising that having purchased the automobile from the original vendees, without knowledge of the fact that a condition of the sale had been agreed upon betwen the parties whereby the title was to remain in the vendor till full payment of purchase price, the plaintiff should refuse the demand of the defendants. Plaintiff was justified in believing that Miller and Taylor had title to the automobile, for possession of personal property is the highest evidence of title. It is not conclusive, and the defendants here had a right to rebut the presumption of title arising out of the possession and to bring the replevin action, which they did. Until the plaintiff here had repudiated the contract after it had been established, as between him and the defendants, the latter were not justified in treating it as repudiated by the former, and the rules invoked by the defendants are not applicable. It must appear that there has been a willful, intentional renunciation of an admitted or established contract. To apply the principles contended for by defendants to this case would be going too far; it would not be just or reasonable. In some jurisdictions conditional contracts of sale are in decided disfavor with the courts, and it has been held in some states where a third party, without knowledge of the fact that the contract is conditional, has purchased the property, his title and possession will not be disturbed, by proof that there has been a secret condition of the sale that the title should not pass to the original vendee. *Page 467 A different rule obtains in this state, but the courts should not apply the rule further than is necessary for the protection of the interests of all parties who have acted in good faith. Time was not the essence of the agreement, and in any event, according to all the decisions to which attention has been called, the vendee or his successor in interest should be allowed, within a reasonable time after the retaking of the property by the vendor, to recover the possession with full title by payment of the balance of the purchase price. Under all the circumstances of the case as presented here, the plaintiff's tender of the balance of the purchase price and interest made within a few days after the judgment in the replevin case, must be held to have been made within a reasonable time, and a refusal of the defendants to accept the tender and deliver possession of the automobile was conversion. If the contract had been made between the defendant and the plaintiff here, a different conclusion might be reached; but in view of the fact that the plaintiff was ignorant of the terms of the contract, which he did not make, and knew nothing of except as asserted by the defendants, it would seem unreasonable that the plaintiff was guilty of laches in tendering the balance of the purchase price.
"In the replevin case the defendants here, being plaintiffs there, alleged the value of the automobile to be $450 and the court so found; and from the evidence presented upon the trial of this case, I think the court's conclusion should again be that the value of the automobile at the time of the commencement of this action was $450, for which amount, less the balance of the purchase price, which was tendered, to wit: $135.50, the plaintiff shall have judgment, and an order will be entered to that effect.
"WALTER BORDWELL, Judge." *Page 468