53 Cal. 597 | Cal. | 1879
This is an action in the nature of an action of replevin, for the recovery of the possession of certain household furniture. The complaint is in the usual form, alleging the ownership and riuht or possession of the plaintiff, a demand that the defendant deliver the possession of the property, the refusal of the defendant so to do, and her unlawful withholding of the possession thereof, to the plaintiff’s damage, etc. The answer denies each of those allegations, except the withholding of the property, but does not set up any new matter.
This is not a sale, but only a contract for the sale of the property, and the legal title to the property is not thereby transferred or changed. The person with whom such a contract is made has only such right to the possession of the property as the contract gives; and if the contract provides that the right of possession shall cease upon the failure to perform a specified condition, the owner may, upon the failure of the other party to perform the condition, resume the possession. If the condition be the payment of the purchase money at a given time, or in specified installments, the failure to make such payment entitles the owner to the immediate possession of the property. The rule of law in this respect is the same as in case of a sale on credit, with the agreement that if the purchaser fail to pay the purchase money within a specified time, the vendor may retake the possession of the property sold. (1 Pars, on Cont. 537, note; Benj. on Sales, sec. 320, note; Ibid. sec. 343; Preston v. Whitney, 23 Mich. 264.)
The Court found that on the 10th day of April, 1875, there was due from the defendant to the plaintiff’s assignees the sum of forty-three dollars and fifty-six cents, and that none of that amount was paid until the 30th day of April, when twenty-five
There does not appear to be any ground upon which it can be asserted that after a default in the payment of an installment at the specified time, the «payment of a part of the installment will have the effect to waive the default and restore the party to the rights lost by the default. The facts found show beyond controversy that at the commencement of the action the plaintiff was entitled to the possession of the property.
The defendant offered evidence to show, and the Court found, that after the commencement of the action the defendant sev
Judgment and order reversed, and cause* remanded for a new trial.
Mr. Justice McKinstry expressed no- opinion.