COMMERCIAL CREDIT CO., INC.,
v.
OWEN B. MILLER, ET UX.
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A finance company holding a conditional sales contract for an automobile sought to replevin the vehicle after the buyer defaulted on installment payments. The Florida Supreme Court reversed the trial court's judgment, holding that the creditor's temporary repossession to collect delinquent payments did not exhaust its right to replevin for the full purchase price.
A creditor's temporary repossession to collect delinquent installments does not exhaust its right to replevin. The creditor retains all its rights under the conditional sales contract, including the right to replevin the vehicle and its election of remedies to enforce payment of the remaining balance.
“when the plaintiff re-delivered the automobile to the defendant upon the payment of those delinquent installments it forfeited none of its right of property in the automobile, nor none of its rights to pursue such course as it might see fit to enforce the payment of the balance of the purchase price”
Establishes that temporary repossession does not divest the creditor of its property rights or remedies under the conditional sales contract
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Join FLexlaw to unlock all legal intelligenceCommercial Credit Company held a conditional sales contract (by assignment from the original vendor) for an automobile sold to Owen B. Miller and his …
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The writ of error here is to a judgment of the Circuit Court of Sarasota County in favor of the defendant in a replevin action. The plaintiff in error was the *555owner and holder by assignment of retain title contract involving the purchase and sale of a certain automobile.
The contract was originally between Orange Blossom Service Station, Inc., and Mrs. Nita Miller and her husband, Owen B. Miller. The contract is in the conventional form of the conditional sales agreement used in the purchase and sale of automobiles. It provides that the automobile should remain the property of the vendor until it is fully paid.
The contract, together with the ownership of the property-embraced therein, was transferred and assigned to Commercial Credit Company, Inc.
The plea was not guilty. Under this plea the defense was that on October 13th, 1931, when default had occurred in the installment payments the plaintiff took possession of the automobile and held the same for a period of three days until the defendant paid up the delinquent installments and thereupon re-delivered the automobile to the plaintiff and it was contended in the court below, and apparently so held, that when the plaintiff took possession of the automobile for the purpose of collecting then delinquent installment payments, that it thereby exhausted its right of replevin. There is no contention that the payment of the then delinquent installments constituted payment in full under the contract.
The contract was not satisfied until full payment thereof was made, or until the automobile was taken from the defendant by replevin, or otherwise, for the purpose of satisfying the contract. The record shows that at the time the automobile was temporarily taken by the plaintiff it had the right to exercise its option and re-possess the automobile and deprive the defendant of any further rights therein, but the record shows also that the plaintiff did not do this, but that it re-delivered to the defendant the automobile *556upon the payment of the delinquent installments, together with certain costs incident to the collection of those installments. There was no other contract made or entered into between the parties and when the plaintiff re-delivered the automobile to the defendant upon the payment of those delinquent installments it forfeited none of its right of property in the automobile, nor none of its rights to pursue such course as it might see fit to enforce the payment of the balance of the purchase price. At the time of the institution of this suit the plaintiff had its election of remedies, either to treat the sale as absolute and sue for the balance of the purchase price, or to exercise its retention of title and replevin the automobile.
Under the facts as disclosed by the record, it was the duty of the trial court to instruct a verdict in favor of the plaintiff and to enter judgment accordingly as is provided by law.
The judgment should be reversed and the cause remanded for a new trial. It is so ordered.
Reversed and remanded.
Davis, C. J., _ and Whitfield, Ellis, Terrell and Brown, J. J., concur.
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Encore, Inc. v. Olivetti Corp. OF Am., 326 So. 2d 161 (Fla. 1976)…which is considered a recission of the contract. The key word is that the action for the entire price treats the sale as absolute. A sale is not absolute unless the action is for the entire purchase price. In Commer [*164] cial Credit Co. v. Miller, 111 Fla. 554, 149 So. 482 (1933), we held that the assignee of a retain title contract who took possession of the property for purposes of obtaining payment of delinquent installments, and redelivered it to the buyer upon payment, did not forfeit the right to la…
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Coronet Kitchens, Inc. v. The Mortg. Mart, Inc., 146 So. 2d 768 (Fla. 2d DCA 1962)…Process Co. v. Florida White Pressed Brick Co., 1908, 56 Fla. 116, 47 So. 942; Voges v. Ward, 1929, 98 Fla. 304, 123 So. 785; Baer v. General Motors Acceptance Corporation, 1931, 101 Fla. 913, 132 So. 817; and Commercial Credit Co. v. Miller, 1933, 111 Fla. 554, 149 So. 482. It is well settled in Florida that where a party with knowledge of the facts elects to adopt one of several inconsistent remedies, either of which are opened to him, he cannot afterwards go back and elect again and pursue the other re…
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Cent. Farmers Tr. Co. v. McCampbell Furniture Stores, Inc., 128 Fla. 60 (Fla. 1937)…ebt. See (American Process Co. v. Fla. White Pressed Brick Co., 56 Fla. 116, 47 Sou. 942; Voges v. Ward, 98 Fla. 304, 123 Sou. 785;) Baer, et al., v. General Motors Acceptance Corporation, 101 Fla. 913, 132 Sou. 817; Commercial Credit Co. v. Miller, 111 Fla. 554, 149 Sou. 482; Helton, et ux., v. Sinclair, 93 Fla. 1121, 113 Sou. 568; Jackson v. Wade Mfg. Co., 102 Fla. 972, 136 Sou. 689, and cases cited in these opinions. At the time this suit was filed there was no chattel mortgage' in existence in favor of…
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