| N.Y. App. Term. | Feb 18, 1910
The plaintiff has brought an action for the conversion of a coffee mill, delivered to defendant under a conditional contract of sale which provided that the payment should be made in monthly installments and that—
“in case of defendant’s default in making or failing to make any one of said payments * * * the plaintiff should be entitled to the immediate possession, and return of said mill.”
The defendant set up in defense that the plaintiff has already recovered a judgment against the defendant in an action arising out of the same transaction, and that this judgment has not been satisfied. At the trial it appeared that plaintiff had already obtained a judgment for the. purchase price. Thereupon the trial justice directed a verdict for the defendant, apparently upon the theory that, where the vendor under a conditional contract of sale has sued for the purchase price and obtained a judgment, he has affirmed the sale, and by a proceeding inconsistent with the condition as to the retention of the title in himself has conclusively disaffirmed this condition.
Conceding, without deciding, that this theory is correct as a general statement of law, it has no application to this case. In all the cases cited to the trial justice and appearing upon the briefs upon this appeal, the condition in the contract of sale was actually inconsistent with the assertion in a court of law of the right to the purchase price. Where, however, the contract provides either specifically or by necessary intendment that the vendor shall retain title until full payment is made, either at the end of legal proceedings or without them, there is nothing inconsistent in suing for the purchase price with the provision of the contract that the title to the merchandise should not be changed until the price was fully paid. In American Box Machine Co. v. Zentgraf, 45 App. Div. 522, 61 N. Y. Supp. 417, the court held that an action prosecuted to judgment upon notes given as part of the original transaction, and under the express stipulation that the retention of the title in the purchaser should not be affected by the giving of the notes until those notes were actually and absolutely paid, was no bar to a subsequent action for conversion.
In this case the provision of the contract is even clearer, for it was thereby agreed that—
“the title to the said apparatus shall not pass until the purchase price or any judgment for the same is paid in full, and- shall remain your property until that time.”
. Judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.