214 N.W. 284 | Minn. | 1927
In 1919 the plaintiff brought an action of replevin in the municipal court of Bemidji to recover possession of the books or their value in the event that possession could not be had. The defendant answered and assumed to tender those books for which he conceded payment had not been made, or in lieu thereof the sum of $20, their value. The plaintiff then sent the defendant an unsigned dismissal of the replevin action, and commenced suit on the notes. A few days after suit was brought it sent the defendant a signed dismissal. The plaintiff did not take possession in the replevin suit.
It is our consistent holding that a plaintiff who retakes because of nonpayment the property which is the subject of a conditional sale contract, in which title is reserved, makes his election, there is a rescission, the contract is at an end, and he cannot afterwards sue on the notes. Minneapolis Harv. Works v. Hally,
We have no uniform conditional sales act. The holdings vary in the different jurisdictions and we do not review them. 2 Williston, Sales (2d ed.) §§ 579, 579a; 35 Cyc. 696, et seq; 24 R.C.L. p. 491, § 785; note, L.R.A. 1916A, 922, 925; note, 37 A.L.R. 88, 91-115; Uniform Cond. Sales Act, § 24; 2A U.L.A. § 123, et seq; Am. Dig. Sales, § 479 (1, 10, 11).
In this connection it may be noted that under the uniform sales act, § 53, G.S. 1923, § 8427, the unpaid seller in possession has a right of lien whether title has or has not passed to the vendee, and under § 56, G.S. 1923, § 8430, such unpaid seller does not lose his lien by reason only that he has obtained judgment for the purchase price. See Hoven v. Leedham,
Order affirmed. *486