(dissenting).
This is another case where I believe bad facts are making bad law. The bank sold the practically new freezer at a very low price, with the result that after applying his deposit of $310 and selling the freezer Nelson was refunded only $15.02. If only the appellant bank had to hereafter suffer the consequences of the opinion of the majority I could easily shut my eyes and go along, satisfied a just decision had been reached in this case. Unfortunately everyone in the state will be hereafter bound by the opinion in this case, and a long established and heretofore banking custom is overturned.
The majority opinion cites cases from Utah and Massachusetts as authority for affirming the judgment. The Utah case follows the California decisions which are based on section 726 of the Code of Civil Procedure of California which reads as follows:
“There can be but one form of action for the recovery of any debt, or the enforcement of any right secured by a mortgage upon real or personal property, which action must be in accordance with the provisions of this chapter.”
After the statute had been construed by the Supreme Court of California, Utah enacted the same statute and its Supreme Court felt the California construction should be followed. This leaves only Massachusetts supporting the opinion without a statute on the subject.
Holdings to the contrary in the absence of a controlling statute are: Harper v. First State Bank of Grand Prairie, Tex. Civ.App., 3 S.W.2d 552; Caudle v. Eliasville State Bank, Tex.Civ.App., 93 S.W. 2d 779; American Surety Co. v. De Escalada, 47 Ariz. 457, 56 P.2d 665; Kress v. Central Trust Co. of Rochester, 153 Misc. 397, 275 N.Y.S. 14, affirmed 246 App.Div. 76, 283 N.Y.S 467; Boydston v. Bank of Camden Point, Mo.App., 141 S.W.2d 86.
The Harper case clearly distinguishes the California cases.
Believing the majority holding to be erroneous and that it will result in more harm than good, I dissent.