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first brought suit for the purchase price. The courts are anything but harmonious in regard to it. If the right to sue for the purchase price is itself based, as we have seen that many courts do base it, on the assumption that possession until default is the quid pro quo for the promise to pay the price, and that title was not to pass till after payment, then title should not pass merely because a suit for the price has been started, or a judgment secured. Title, then, being still in the seller and the condition on which the buyer's possession depends having been broken, there is no logical reason why the seller should not be allowed to retake possession. Many courts do hold, for one reason or another, that the seller is not precluded from retaking possession merely because he has started a suit, or even secured a judgment, for the purchase price. 37

Courts which put the seller's right to sue for the price, as such, instead of for damages, on the theory that he has elected to pass title to the buyer, do not, as a rule, allow the seller to retake possession after such a suit, even though the judgment has not been satisfied. Logically, having passed title, the seller has lost his right to repossession.88

37—Matthews V. Lucia, 55 Vt. Co., 244 Fed. 730, holding that 308; Fuller v. Byrne, 102 Mich. right to possession had not been 461; Canadian Co. v. Macgurn, lost by prior action in equity for 119 Mich. 533; Campbell, etc. Co. declaration of a lien in seller's v. Rockaway Co., 56 N. J. L. 676, favor; Ratchford v. Cuyahoga, etc. distinguishing Heller v. Elliott, 44 Co., 145 N. Y. S. 83, seller not preN. J. L. 467, on the point that in cluded by suit for part, of price the latter case the seller had from setting up title as against a levied upon the goods, under his mortgagee of the buyer; Hobart judgment, as being the buyer's Elec. Co. v. Rooter, 121 N. Y. S. property; Forbes Co. v. Wilson, 274, suit for part of price does not 144 Ala. 586, overruling a contrary preclude action in conversion dictum in Davis v. Millings, 141 against buyer. Ala. 378; Thomason y. Lewis, 103 38—Turk v. Carnahan, 25 Ind. Ala. 426; Rossiter v. Merriman, App. 125; Crompton v. Beach, 62 80 Kan. 738, analogy of suit on a Conn. 25; Frisch v. Ells, 200 Mass. note as not releasing a mortgage. 429; Bailey v. Hervey, 135 Mass.

CL. Meyer v. Pacific Machinery 172; Francis v. Bohart, Ore.

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In other cases repossession by the seller, after suit for the price, is denied without statement of any definite theory.

A way of escape for the seller from this proposition that if he brings suit for the price he forfeits his right to retake possession even though the judgment is not satisfied, is suggested in Fuller v. Byrne.40 The contract there provided that title should not pass to the buyer until payment or until satisfaction of any judgment recovered. The court held that suit for the price and an unsatisfied judgment did not preclude the seller from retaking possession.41 The decision must mean that this court considers the passing of title to be an effect of the suit, but not a condition precedent to suit for the price.

A suit to recover installments due does not have the same effect as a suit to recover the whole price, and the seller does not, in most jurisdictions, lose his right to retake possession because of a suit to recover installments.42

L. R. A. 1916 A 922, "An action for the purchase price of the property is an action on the contract, and necessarily proceeds upon the theory that the title has been waived by the seller and vested in the buyer"; Parke Co. v. White River Co., 101 Cal. 37, suit is "a ratification of the sale"; Holt Mfg. Co. v. Ewing, 109 Cal. 353, an "election to treat the transaction as an absolute sale."

39–Seanor v. McLaughlin, 165 Pa. 150; Manson v. Dayton, 153 Fed. 258; Ramey v. Smith, 56 Wash. 604; Chase v. Kelly, 125 Minn, 317, dictum; Bell v. Old, 88 Ark. 99; Elwood State Bank v. Mock, 40 Ind. Ap. 685; Button v. Trader, 75 Mich. 295; Dowagiac Mfg. Co. v. Mahon, 13 N. D. 516;

Mchts. etc. Bk. v. Thomas, 62 Tex. 237.

40-102 Mich. 461.

41- In the absence of such a provision, an unsatisfied judgment for the price was held to preclude repossession by the seller in Bul. ton v. Trader, 75 Mich. 296.

42-Haynes V. Temple, 198 Mass. 372; compare tuis with Frisch v. Wells, 200 Mass. 429, 23 L. R. A. (n. 8.) 144, to the effect that suit for the whole price does end the right of repossession. Ratchfield v. Cayuga, etc. Co., 145 N. Y. S. 83, affirmed 217 N. Y. 565; Silverstein v. Kohler, 58 Cal. Dec. 138, 183 Pac. 451.

Contra. Eilers Music House v. Douglass, 90 Wash. 683, L. R. A. 1916 E. 613.

After Other Acts.-Even in jurisdictions where suit for the price is not held to indicate a passing of title to the buyer, the seller's intent to treat it as having passed may be shown in other ways, as by attaching the goods, or levying upon them as the property of the buyer. When he has so elected to treat them as the property of the buyer he can not afterward repudiate that election and retake possession.43

Suit for Price After Retaking Possession. If the

seller, instead of suing for the price, chooses to retake possession, the cases are well agreed that he loses his right to sue for the price. The theory on which this forfeiture of the price is based is not so well settled, however. A number of courts put it on the ground that the seller's right to retake the goods is by way of rescinding the contract. Accordingly, if he has so retaken possession, he must have rescinded and there is in consequence no contract on which he can bring a suit. They apply this even when the suit is on a promissory note given for the price.44 This theory is hardly consistent with the rule


43—Elson v. Moore, 11 Cal. Ap. 377, suit and attachment; Heller

Elliott, 44 N. J. L. 467, levy; Ramey v. Smith, 56 Wash. 604, levy; Orcutt V. Rickenbrodt, 59 N. Y. S. 1008, acceptance of a promissory note as pay. ment of the price; Fuller V. Eames, 108 Ala. 464, attachment; Albright v. Meredith, 58 0. S. 194, levy.

title in case of non-payment or to affirm it in the buyer. In such case, it was held, suit for the price was an affirmance of the buyer's existing but voidable title.

Other cases may be distin. guished on various grounds. Thus Moline Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111, appears to be a case in point. As a matter of fact the court held, as regards part of the goods in controversy, that the title to the goods had passed by mutual agreement with an option in the seller to retake

44-Glisson v. Heggie Bros., 105 Ga. 30. In Turk v. Carnahan, 25 Ind. Ap. 125, the court expresses the matter thus:-"The contract sued on is a conditional one. The condition is that the title to the property sold, as described in the note, shall remain in the vendors (appellees) until the purchase money is fully paid. The title to the property never passed from appellees, and therefore never vested in appellant. *

• Upon default of the vendee to pay, 28 provided in the contract, the ven. dor has two remedies: 1. He may retake the property, which is a disaffirmance of the sale; or 2. He may treat the sale as absolute and bring an action for the price. The undisputed facts in this case show that the appellees elected to disaffirm the contract, and took possession of the property described in the note. Having asserted their right to disaffirm the contract, and having taken possession of the property under such disaffirmance, appellees thereby abandoned their right to treat the sale as absolute and sue for the price. The law will not permit a vendor of property who retains the legal title in himself to take possession of it upon default of payment, sell, or otherwise dispose of it, and then sue the vendee for the balance of the purchase price."

that the seller can retake without first giving back what he has received, as he should do were it a true rescission.

Other courts follow a theory harmonious with the idea that possession by the buyer is the real consideration for his promise to pay. They hold that the seller can not recover the price after he has retaken the goods because through termination of the buyer's possession there has occurred a failure of consideration.45

a Still other courts say, without any express reason, that the remedies are inconsistent and retaking precludes suit for the price. 46

Underlying Theory.-From all this conflict of authority no one, clear cut dispute of principle, much less any established principle, can be deduced.' The decisions are, many of them, too vague for it to be shown conclusively that those on the one side hold to one definite, clear theory and those on the other side believe positively in a converse of that theory. But from a general survey of the whole there is little doubt that the division is caused, however vague the motivating idea may be in any particular case, by disagreement as to whether the transfer of title is the consideration for the promise to pay, even though the transfer is to be made only after payment, or whether something else, such as the possession of the property, is the consideration for the price and the transfer of title merely a condition subsequent. If possession, for instance, is the consideration, the seller ought logically, when he has executed that consideration, to be permitted to sue for the price, whether he has passed title, or can pass it, or not. Correlatively, if he has sued for the price, such suit should not necessarily indicate that he thereby passed title, and he ought still to be allowed to retake possession. On the other hand, if title is the consideration for the price, he could not logically sue for the price without having passed title, with or without the buyer's assent. Having so sued, and thus shown an election to treat title as passed, he could not logically be thereafter allowed to retake possession by asserting title in himself.

45—McBryan v. Universal Elevator Co., 130 Mich. 111; Perkins V. Grobben, 116 Mich. 172; Minne.

sota Harvester Works v. Holly, 27 Minn. 495; Aultman & Co. v. Olson, 43 Minn. 409; Keystone Mfg. Co., 74 Minn. 115; Earle v. Robinson, 36 N. Y. S. 176.

But, in accord with this theory, it the buyer has had possession for the agreed time before it was taken from him, the seller can recover, Equitable etc. Co. v. Potter, 48 N. Y. S. 647.

46–Crompton V. Beach, 62 Conn. 25; Loomis V. Bragg, 50 Conn. 228; Seanor v. McLaughlin, 165 Pa. 150; Edmead v. Anderson, 103 N. Y. S. 369; Campbell Press Co. v. Henkle, 19 D. C. 95; Green V. Sinker, Davis & Co., 135 Ind. 434.

Contra. Dederick v. Wolfe, 68 Miss. 500, on theory that retaking was not a rescission, but merely a taking of possession by way of security; McDaniel V. Chiaramonte, 61 Ore. 403, idem.

The real conflict appears to be, therefore, whether, in the absence of any clear expression, the courts will treat the possession or the title as the real consideration and will assume the buyer's agreement to be a promise to pay in consideration of the possession, with passing of title as a condition subsequent, or a promise to pay in consideration of the title, with possession as a condition precedent.

Some, at least, of the apparent conflict within jurisdictions may be due to the fact that in a particular case there is enough evidence of a real intent to overcome the customary judicial presumption.47

47—Thus in Massachusetts it

has been held that a conditional

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