Wood, J., 1. sale construed to "be conditional, (after stating the facts.) True, the int . strument evidencing the contract between the parties expresses that the property is “bargained, sold and delivered,” but this is coupled with the condition “that if the said S. P. Teatro shall pay said Thomas Shannon the said note at the time herein specified, then this bill of sale is to be valid; otherwise void.” This condition clearly characterizes the transaction, we think, as a conditional sale. The payment of the twenty-one hundred dollar note was therefore a condition precedent to passing the property. The fact that the property was delivered to S. P. Teatro under the contract was of no consequence to affect the rights' of the vendor, as possession was only prima facie evidence of title. Simpson v. Shackelford, 49 Ark. 63" date_filed="1886-11-15" court="Ark." case_name="Simpson v. Shackelford">49 Ark. 63. It must be conceded, in view of our own decisions, that the question would be entirely free from difficulty if there had been an express reservation of title in the vendor. Simpson v. Shackelford, supra; McRae v. Merrifield, 48 Ark. 160" date_filed="1886-11-15" court="Ark." case_name="McRea v. Merrifield">48 Ark. 160; McIntosh v. Hill, 47 Ark. 363" date_filed="1886-05-15" court="Ark." case_name="McIntosh v. Hill">47 Ark. 363; Carroll v. Wiggins, 30 Ark. 402" date_filed="1875-11-15" court="Ark." case_name="Carroll v. Wiggins">30 Ark. 402.
Well, the language in which this condition is couched conveys the same idea with as much force and clearness. There is no chance for misconception if the parties meant what they expressed. We must presume they did. Then, unless there was a payment of the purchase money at the time specified, there was no sale. The unambiguous terms of this instrument bring the present case within the rule laid down by Mr. Benjamin in his treatise on Sales. “Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of. the property depends, the property will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.” Benjamin on Sales, 6th Ed. at p. 255, sec. 320, and authorities cited on page 282, under title “American Note,” par. 4, where it is said, speaking of the buyer’s note: “Where such prepayment is the express condition of the sale, there is no doubt the vendor could take the goods from the vendee if the condition is not performed.” It follows that the instruction given by the court was correct, and the testimony concerning reservation of property in vendor was properly admitted, for it did not vary or contradict the written contract.
2. When giving* new note is a payment. 2. But, in refusing to give appellant’s fourth request, the court failed to compass all the evidence on the question of payment. Appellant and Lescher testified that the note for twenty-one hundred dollars was paid. If such was the case, appellant’s fourth request announced the law, and should have been given, to present both sides of the case on the question of payment.
3. Election to treat conditional sale as absolute. 3. We cannot say that the refusal to give appellant’s third was error. While it is undoubtedly the law that where two inconsistent courses are open to a party, and he elects to pursue one, he must abandon the other (Bailey v. Hervey, 135 Mass. 172" date_filed="1883-06-19" court="Mass." case_name="Bailey v. Hervey">135 Mass. 172; Butler v. Hildreth, 5 Met. 49), yet, in view of the proof, it cannot be said that two inconsistent courses were open to Shannon when he sued out the attachment and had levy made upon the property in controversy ; for, if the sale was conditional, the relation of debtor and creditor did not exist absolutely, and the vendor was not required, until the breach of the condition, to make his election to recover the property or sue for its price. McRae v. Merrifield, 48 Ark. 160.
If payment of the note for six hundred dollars was a condition precedent to passing the property, and a time was fixed when payment should be made, it was necessary to show that the time had expired, and no payment— i. e., a breach of the condition, before the vendor (Shannon) could be held to an election. The proof is silent as to when the note for six hundred dollars was due.
4. It is insisted that the motion for new trial “contains no ground based on the refusal of the court to give instructions.” We presume this statement was made by learned counsel inadvertently, from a failure to examine the transcript of the record, as it there appears that the exception to the ruling of the court in refusing to give instructions was to “each of the requests.”
Nor the error indicated, the judgment is reversed, and cause remanded for new trial.