
    Fred Fairbanks, Appellant, v. Daniel P. Nichols and Others, Copartners, Doing Business under the Firm Name and Style of D. P. Nichols & Co., Respondents.
    First Department,
    December 3, 1909.
    Appeal — presumption after mutual motions for verdict — conditional sale — waiver of statute protecting vendees — effect of voluntary surrender of property.
    Where the court finds for the defendant after mutual motions for the direction, of a verdict, it will be presumed upon appeal that the court decided all controverted questions in his favor.
    A vendee may waive his statutory right to recover sums paid on a contract of conditional sale on the ground that the vendor having retaken the property on . the vendee’s default, has failed to sell the same within the time required by section 116 of the Lien Law.
    Where a contract in the nature of a conditional sale stated that the vendee had “hired” the property and that monthly installments paid thereon were to he considered as rent, but gave the vendee a right to a bill of sale when the rent paid amounted to a certain sum, with a right in the vendor to take possession without legal proceedings in case of the vendee’s default, the vendee having voluntarily surrendered the property upon the ground that it' was not worth the amount then unpaid, cannot recover his payments by reason of the fact that the vendor failed to sell the property as required by said statute, if the amounts paid amounted to no more than the fair rental value of the property while used by the vendee.
    Ingraham and Scott, JJ., dissented, with memorandum.
    Appeal by the plaintiff, Fréd Fairbanks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24th day of June, 1909, upon the verdict of a jury rendered by direction of the court.
    
      
      John E. O'Brien, for the appellant.
    
      Herbert Goldmark, for the respondents.
   Laughlin, J.:

This action is based on the provisions of section 116 of the Lien Law (Laws of 1897, chap. 418),- as amended by chapter 762 of the Laws of 1900, and is brought to recover payments made by the plaintiff on account, as he alleges, of the purchase price of a certain hansom cab and harness which the defendants retook on account of the plaintiff’s failure to make payments as agreed upon, and thereafter failed to sell within the time and as provided in the statute.

On the 7th day of May, 1902, the plaintiff executed an instrument in writing, under his hand and seal, and delivered the same to the defendants. The instrument begins with the words Know All Men By These Presents,” and recites that the plaintiff has ■ hired and received from the defendants a certain hansom cab and harness therein particularly described; that for the use ” of the property and “ as rent for same ” he had given to the defendants on the same day one hundred dollars in cash, and promised to pay the further sum of thirty-five dollars per month for twenty-eight months, and ten dollars for .the twenty-ninth month, and that as collateral security he has. given twenty-nine promissory notes bearing even date with the instrument; that six per cent per annum was to be paid on the notes “ until such time as the sum paid and to be paid by me shall, including all promissory notes given to renew any note given as aforesaid, amount to the whole sum agreed upon for said property, viz., One thousand & Ninety Dollars, and also all repair bills, amount due as cab hire on other cabs, interest at the rate of six per cent per annum and expenses; ” that he was to keep the property insured and in good condition and repair at his own expense, and he agreed that the property should be used “ during the continuance of this lease” in the city of New York- and no other place. The agreement further provided that “ when the said sum of One Thousand & Ninety Dollars, cost of repairs, cab hire on other cabs and said interest and expenses have been fully paid, said rent shall cease and said property becomes my property, and I shall have the right to ask for, demand and receive from the said D. P. Nichols & Go. a bill of sale of the same. But in case of neglect or failure- on my part to pay said rent, as aforesaid, or to keep and perform aüy of the agreements which on my'part are to he. kept and performed,” then the defendants might lawfully, without being deemed guilty of trespass and without rendering themselves or either of them liable “ to refund any money received by them as rent as aforesaid, enter any premises where said property may be found, and take possession of and remove said property therefrom, without first resorting to any legal or formal process -of law whatsoever.” He further agreed that “ so long as any rent shall be due and payable as aforesaid, and before I shall have received said bill of sale,” he would not injure, sell, assign or mortgage the property or remove it from the city without the written consent of the defendants, and that he would, in case of a breach of the agreement on his part, return the property to the defendants on demand and at his own expense. The evidence shows that the rental value of the hansom and harness, per month, approximated the monthly payments which the plaintiff was to make. The plaintiff made the down payment of $100, and the hansom and harness were delivered to him on the day he executed the instrument, the material parts of which have been stated. He made twenty-five of the monthly payments and interest on the unpaid installments. On the 17th day of August, 1908, he made default in one of the payments and the defendants, through an agent, demanded the payment. The plaintiff, according to the testimony of the defendants’ collector, stated that lie could not make the payment; that the hansom was not worth the. money due on it; that some friends liad, bought a better hansom for him for less money and that he'would leave the hansom in the stable that night and that the defendants should come and get it and the harness and that pursuant to this voluntary suggestion made by the plaintiff he called for and took the hansom to the defendants, but by a mistake, the wrong harness was given toliim and that defendants never got the harness which they delivered to the plaintiff, but that the plaintiff kept and thereafter used the harness and stated that he owed money on his and that-the defendants could have it if they paid the amount which he Owed on it. The plaintiff admitted that he had an interview with the collector of the defendants and he did not deny the conversation as narrated, by -the collector. He did, however, state that he had a talk with one of the defendants concerning his inability to continue paying installments; that he did not tell the defendant to come and get the hansom, but in answer to a question by the defendants, he informed them of the time when the hansom was taken to the stable at night and said that the defendant came, and got it the next day or the day after.

At the close of the evidence both parties moved for a direction of a verdict and thereby all questions of fact were submitted to the court for determination. It must be presumed, therefore, in support of the judgment, that the court found all controverted questions in favor of the defendants. It follows that the court is presumed to have found that the plaintiff voluntarily surrendered the possession of the cab to the defendants; that the defendants took possession at the suggestion of the plaintiff and that the plaintiff assigned as a reason for this course that it was not worth the amount unpaid upon it. On these facts, therefore, no question is presented with respect to the right of a vendor and vendee where a conditional sale is made to stipulate that in the event of a failure of the vendee to make the payments and of the vendors retaking possession of the property he may, without selling the property as required by the statute, retain from the moneys paid on account of the purchase price the stipulated or reasonable rental value for the use of the property. Nor is it necessary to decide whether the instrument in question may, for the purpose of sustaining the judgment, be construed as a lease, or whether it should be deemed a conditional bill of sale. We are of opinion that cases may arise in which it is competent for the party to waive the benefits of the statute, and that the facts in the case at bar, as found by the trial justice, present such a case. The statute was designed to protect vendees against overreaching vendors by preventing a vendor from exacting payments on the purchase price of personal property far in excess of the fair rental value for its use and then retaking the property and forfeiting the payments made on account of the inability of the purchaser to complete the payments as agreed. Here there was no hardship. The plaintiff has only paid, approximately, the fair rental value for the use of the property, and we have his word for it that his equity in the property was of no value for it was not worth the amount which he had agreed to pay. The Legislature has not attempted to supervise the agreements'between vendors and vendees with respect to the value ox purchase price of property, but only with respect to forfeitures of rights on account of non-payment of installments where goods are sold on the installment plan. No public policy requires that the court on these facts should hold that it was not competent for the plaintiff to waivé any rights that he might otherwise have under the statute (See Woodman v. Needham Piano Co., 47 Misc. Rep. 683; Warner v. Zuechel, 19 App. Div. 494), and he should be deemed estopped from now asserting that the. defendants should have sold the jiroperty as-if they had retaken the-same against his will. (Clark v. West, 193 N. Y. 349; Draper v. Oswego Co. Fire Relief Assn., 190 id. 12.) Had plaintiff stood upon his rights and insisted that he had an equity in the property, the defendants might not have deemed it to their advantage to take the property back and thus incur the trouble and expense of a public sale under the statute and of accounting to plaintiff. We, therefore, place the decision upon that ground and refrain from expressing an opinion on any other -question.

It follows, therefore, that the judgment should be affirmed, with costs.

McLaughlin and Houghton, JJ., concurred ; Ingraham and Scott, JJ., dissented.

Ingraham, J. (dissenting):

I dissent. I think this was clearly a conditional sale and that the parties so intended. If all of the so-called rent had been paid the title would have vested in the plaintiff. It was, therefore, a sale conditioned upon the rent being paid and was a conditional sale of the property. The defendant has received a certain amount on account, and the Lien Law (Laws of 1897, chap. 418,.§ 116, as amd. by Laws of 1900, chap. 762) applies. The vendor can at any time relieve himself from liability by complying with the statute and selling the property. ■

I think the judgment should be reversed.

Scott, J., concurred.

Judgment affirmed, with costs.  