Sager v. Schmidt

Beach, J. The note sued on was in the following form:— “$300.00 Maybrook, N. Y., June 25, 1921. One month after date I promise to pay to the order of Herman Sager Three Hundred Dollars at the First Nat’l. Bank of Maybrook. This note is given for Bal. on 1916 Elgin Touring Car Motor No. A1205-Series 159. It is expressly understood and agreed that the title and *737 ownership of said property does not pass until this note and interest thereon and all renewals of this note shall have been paid in full, and said Herman Sager is the owner of said property until same is paid and said Herman Sager may take possession of said property at any time if this note is not paid as agreed, or if said property is badly kept, treated or cared for. Value received with interest. Wm. Schmidt.” Plaintiff offered evidence to prove the execution, presentment, dishonor and protest of the note. The defenses were, first, general denial; second, that the note was procured by misrepresentation and fraud; with a counterclaim for damages. At the close of the plaintiff’s evidence the defendant moved for judgment as of nonsuit, on the ground that by the terms of the note the plaintiff’s only remedy in case of nonpayment was by retaking possession of the property conditionally sold. It was on this ground alone that the nonsuit was granted, and the only reasons of appeal are that the court erred in holding that the plaintiff’s only remedy was by retaking the automobile, and that the court erred in not treating the contract as a New York contract, and in refusing to allow the plaintiff to introduce evidence as to the law of New York. The latter reason of appeal is not presented by any finding showing that the evidence was offered, ruled out and the ruling excepted to, and it cannot be considered. It is, however, quite clear that by our law, as well as by the law of New York, the plaintiff was entitled at his election to sue on the promise to pay, or to retake the property. “The contract contains an absolute and unconditional promise to pay, which has not been performed.” O’Neill-Adams Co. v. Eklund, 89 Conn. 232, 236, 93 Atl. 524. “Where goods, according to the con *738 tract, have been delivered, and the contract contains an absolute provision to pay the agreed price, the seller may waive any additional remedies stipulated for in the contract, and recover in an action for goods sold and delivered.” United Machinery Co. v. Etzel, 89 Conn. 336, 342, 94 Atl. 356; Beach’s Appeal, 58 Conn. 464, 20 Atl. 475. As to the law of New York, see Gray v. Booth, 64 N. Y. App. Div. 231, 71 N. Y. Supp. 1015; Norton v. Abbott, 113 N. Y. Supp. 669; Taylor v. Esselstyn, 62 Misc. 633, 115 N. Y. Supp. 1105; Mortenson Woodworking Co. v. Raabe, 171 N. Y. Supp. 128. There is error, the cause is remanded with direction to set aside the judgment as of nonsuit, and a new trial is ordered. In this opinion the other judges concurred.