25 A. 446 | Conn. | 1892
The present contention grows out of the same contract which was considered by the court in Beach's Appeal fromCommissioners,
The contract appears in full in the former case, (
The plaintiff, however, says that she did not exercise any option until she resumed possession; that the provisions of the contract that the amount paid should be for the use of the machinery, applies equally whether such payment, prior to such resumption, was by the voluntary act of the vendee or was coerced by the legal action of the vendor. This claim is, we think, not only opposed to the reasoning which we have quoted and approved, but requires for its support a construction of the contract which must be based upon a presumed intention of the parties, which is neither found expressed in the language of the instrument nor can be conceived of as existing in the mind of its makers. The only thing which, in case of the vendee's default, the contract expressly provides for, is the right of the vendor to retake the property, which is to operate as a discharge of the note. And although we have held that the vendor had the option to enforce payment instead, it cannot reasonably be supposed that the parties ever intended that the vendor, through the exercise of an option not expressly given, could by reversal of the order of procedure, instead of retaking the property and cancelling the note, collect the note and then retake the property. Cases cited by the plaintiff's counsel, which hold that when the option is exercised by retaking the amount already voluntarily paid may be retained and cannot be recovered back by the vendee, are not in point. These are payments made by the vendee in affirmance of a contract which it does not lie in his power to disaffirm, and while the contract remains in force and when *37 the vendor makes default, and it thereby becomes the right of the vendor to elect whether he will affirm or disaffirm, if he does the latter, under a contract similar to the present, the vendor is under no obligation to return to the vendee what he has paid in part performance of a contract which it was his fault that he did not perform altogether. But while voluntary payments are made by the vendee in affirmance of the contract, involuntary ones can only be coerced after default, and import a like affirmance on the part of the vendor, because upon such default, it being the right of the vendor to elect whether he will affirm or disaffirm, though it may be true that he might defer such election for a considerable time, yet, whenever he brings an action to recover the contract price, he does affirm it, just as much as he disaffirms it when he retakes the property. To say, therefore, that the vendor's option, in the case before us, was not exercised until the retaking, is erroneous. It involves a double election — to affirm the sale to get as much as possible out of the general assets of the insolvent estate, and then to rescind it to get as much more as possible out of the property specifically, which seems to us, it must be said, a fast and loose fingering of the contract. The plaintiff insists that there is no injustice in this, since she only seeks to obtain the amount of the purchase price of the property, and cannot get more; that whenever the sum collected equals the debt, the property vests in the vendee, and whenever such sum less than the debt is enough to make the balance due below the value of the property, the vendee can obtain title by paying the remainder. There seems to be an inconsistency in this reasoning. If not only what is voluntarily paid, (in this case nothing was in fact so paid,) but what she collects, may be held as rent, why is the plaintiff under any obligation to apply it as part payment upon the note? When she retakes the property it is her duty under the contract to cancel and give up the note. But the note being discharged, is she thereupon to return the property? If the sum received is rent merely, why does not the whole purchase price continue due? If, on the other *38 hand, she is bound to apply it in part payment, why is it not because she has elected to treat the obligation as absolute and not as conditional? We think the plaintiff is mistaken in her claim.
Coming, then, to the second point in the plaintiff's argument, that the law and the agreement taken together, give to her cumulative remedies, which she is entitled to pursue separately until they result in satisfaction, the answer to this claim appears to be clearly embraced in what has already been said. This is not a question of remedy, but of right. The contract was conditional. The note should be paid or the property might be retaken. There was an option. True, this court has held that such option belonged to the vendor and not to the vendee. The debt was absolute if the vendor elected to treat it as such. The plaintiff's intestate, or she as his administratrix, might therefore, upon the vendee's default, demand and enforce either payment or return. If the latter, that by the express terms of the instrument enured to discharge the note. If the former, that equally, though by operation of law, transferred and confirmed the title. Having elected, therefore, to enforce the note, the plaintiff is entitled to all the remedies which the law, or the contract, gives her for that purpose, but not for any other purpose. She could attach the property. She did in fact attach other property. Insolvency intervening, the claim was presented and the dividend received. What other remedy for the enforcement of the debt exists? Not now to retake the property as a means to that end. A contract of conditional sale imposes no lien upon property in favor of the vendor, for that or any other purpose. He does not sell and receive back a pledge. He retains the title until he elects to part with it, and when he does so elect the title passes from him; but nothing else thereby springs up in its place in the nature of a lien or encumbrance upon the property, enuring to his benefit.
And this brings us directly to the remaining claim of the plaintiff, that the contract in question is in the nature of a mortgage. It is not a mortgage. If it had been, it must, *39 in order to be valid, have been executed with statutory formalities, which are lacking, and recorded. It would require foreclosure to perfect title, and it ought to have been considered by the commissioners on the insolvent estate as security for the plaintiff's claim upon the property of such estate, which was not done. It is not, therefore, claimed to be a mortgage, but that it was in the nature of a mortgage. We think, however, that it is just as far from the nature of a mortgage as any other conditional sale; no more and no less; and that to hold that between conditional sales, a class of contracts so often construed and so clearly defined in this state, and chattel mortgages proper, there is an intermediate and anomalous species of contracts, which the court will regard as importing in favor of a vendor all the benefits of both a mortgage and a conditional sale, and against the vendee, the trustee for the benefit of creditors of the vendee's insolvent estate and the public generally, to whom such unrecorded and undisclosed conveyances operate too often disadvantageously, all — the burdens of both, with none of the advantages of either, would be opposed to public policy and cannot be and is not law.
There is no error in the judgment complained of.
In this opinion the other judges concurred.