Shirk Oil Company v. Linsley

MASON, Justice.

This is a law action tried to the court to recover balance due on a promissory note given by Millard Linsley to plaintiff Shirk Oil Company for the agreed price of an inventory of merchandise and equipment purchased by him under a conditional sales contract. Defendant asserted as an affirmative defense failure of consideration and estoppel by reason of plaintiff’s repossession and sale of the property without his consent; that its election to retake the property constituted a waiver of any right to a deficiency judgment for the unpaid balance of the note. The question was…