Supplemental Opinion on Rehearing. On rehearing the appellants contend that the repossession of the automobile on July 25, 1942, after the default of Hampton, completely terminated the conditional sale contract and that, consequently, the Soldiers' and Sailors' Civil Relief Act as amended October 6, 1942, 50 U.S.C.A. Appendix, sec. 501 et seq., has no application.
With this contention we cannot agree.
After the repossession of the automobile the contract (subject to applicable statutes) still measured the rights and remedies of the parties thereto, and it was to the terms of the contract that the parties had to resort, or rely upon, in asserting any claims or rights after repossession.
In this case repossession of the automobile was had under a claim of right under the contract.
Possession of the automobile by the defendants after repossession was under a claim of right under the contract.
Sale of the automobile by the defendants after repossession and during possession was under a claim of right under the contract.
Application of the proceeds of sale by the defendants was under a claim of right under the contract.
The defendants relied upon the terms and conditions of the contract for repossession, possession, sale and application of proceeds of sale.
The contract further provided that any surplus of the sale should be paid to the purchaser and also provided that the purchaser would be liable for any deficiency.
Had there been any surplus the defendants would have been obliged to pay this surplus to the plaintiff and the plaintiff would have had the right to demand such surplus.
Had there been any deficiency and this deficiency claimed[10] against the plaintiff, the plaintiff having paid more than one-third of the purchase price, he would have had the right to defend against any such deficiency claimed. (Sec. 7597, Rev. Codes of Montana, 1935.)
It follows that the rights and remedies of the parties under *Page 493 the contract were not completely extinguished at the time of the repossesion of the automobile. "When the law speaks of a right or obligation as extinguished, it means that it is put out; taken away, destroyed." 35 C.J.S., Extinguish, page 293.
It also follows that the contract was not completely terminated by the repossession of the automobile. "`Termination' or `cancellation' of a conditional contract means to abrogate so much of it as remains unperformed, doing away with an existing agreement upon the terms and with the consequences mentioned in the writing * * *." Sanborn v. Ballanfonte, 98 Cal. App. 482,277 P. 152, 155.
"The termination of a conditional contract, as stated in the case of Sanborn v. Ballanfonte, 98 Cal. App. 482, 277 P. 152, means to put an end to all of the unperformed portions thereof." Blodgett v. Merritt Annex Oil Co., 19 Cal. App. 2d 169, 65 P.2d 123, 125.
It is clear that the conditional sale contract was not fully terminated prior to December 22, 1942, for the reason that the defendants having sold the automobile on the above date, the rights, liabilities and remedies of the parties were not fully determined or terminated under the contract until that time and therefore the Soldiers' and Sailors' Civil Relief Act applies.
The other points which were raised on rehearing by both the appellant and respondent have been treated in the original opinion of the majority of the court, to which we adhere.
Therefore, the original opinion rendered in this case stands, together with this supplemental opinion.
Let remittitur issue forthwith.
Associate Justices Morris, Adair, and Angstman, concur.