Russell v. Martin
122 N.E. 447
Mass.
1919
Check Treatment
Braley, J.

It is settled, that where, as in the case at bar, a chattel is hired for a stipulated sum, a part of which is paid in cash when the bargain is struck, while the remainder is to be paid in instalments according to the terms of eight promissory notes given as collateral security for the price, each of which is for the amount of one instalment, but the title is not to pass until payment of the entire price, and, upon default in the payment of any instalment the lessor has the right to take immediate possession, the transaction is not a lease but a conditional sale. Hurnanen v. Nicksa, 228 Mass. 346. Barabe v. Duhrkop Oven Co. 231 Mass. 466.

The defendant at the maturity of the first note gave his check in payment, but the check, and the subsequent four notes as each became payable, though duly presented for payment, were dishonored. The defendant having defaulted, the plaintiff concurrently sued in replevin for the truck, and in contract, declaring on the check and the overdue notes, and having obtained judgment and possession of the truck in the action of replevin, he contends that he also is entitled to judgment in the action of contract.

The plaintiff undoubtedly could have sued on each note as it fell due and still have retained title. But the sale, which was for a round sum, was indivisible, even if the price was payable in instalments, and the provision that title should remain in him was for his own benefit. Donlan v. Boston, 223 Mass. 285. It was a right which he could waive or assert at his option. While he could retake the truck, or sue on the overdue notes, he could not affirm in part and disaffirm in part. Connihan v. Thompson, 111 Mass. 270, 272. The consideration of the contract wholly failed when the plaintiff repossessed himself of the truck, just as it would have failed if he had waited until all the instalments had matured before he replevied and obtained judgment. White v. Solomon, 164 Mass. 516, 521, 522. Perkins v. Grobben, 116 Mich. 172, 176. *383McBryan v. Universal Elevator Co. 130 Mich. 111, 115. Minneapolis Harvester Works v. Hally, 27 Minn. 495. Manson v. Dayton, 82 C. C. A. 588, 595.

The present action accordingly stands precisely as if it had been brought after the judgment in replevin and by suing to recover a portion of the consideration, or price represented by the notes, the plaintiff treated the contract as if it were an agreement for goods sold and delivered. The election to assert either right was an abandonment of the other as the remedies while alternative are fundamentally inconsistent, and for reasons stated in Bailey v. Hervey, 135 Mass. 172, Frisch v. Wells, 200 Mass. 429, and Schmidt v. Ackert, 231 Mass. 330, there cap be no recovery for either the amount of the notes or of the check which stands no better than if it were a renewal note.

We find nothing inconsistent with this result in Whitney v. Abbott, 191 Mass. 59, where it was held that, if a vendor under a conditional sale brings an action for the whole of the purchase money before all the instalments are payable, he is held to have elected to treat the sale as absolute, or in Haynes v. Temple, 198 Mass. 372, where under the conditional contract there construed, it was decided that, although two of the notes had been satisfied, yet until all the notes were paid, title to a horse did not vest in the purchaser, and the vendor, who subsequently had retaken the horse, was not liable for conversion.

In accordance with the terms of the report judgment is to be entered for the defendant.

So ordered.