Schmidt v. Ackert

De Coubcy, J. In substance the agreement between the plaintiff’s assignor and the defendant contemplated the sale of horses, carriages and other livery stable property and equipment for the sum of $4,000. Five hundred dollars was to be paid at the time of the sale, November 2,1911, and the balance in monthlyinstalments of $140, according to certain promissory notes given by the defendant. On the payment of the full amount the goods and chattels were to become the absolute property of the defendant. Although framed in the language of a lease, The contract plainly was one of conditional sale. Hurnanen v. Nicksa, 228 Mass. 346, 349, and cases cited. On the maturity of any note except the last, the plaintiff might have brought suit upon such overdue note, and still have retained the legal title to the property. Haynes v. Temple, 198 Mass. 372. When the last note became due, on December 2,1913, the plaintiff [333] had the choice of two remedies. She could then treat the sale to Ackert as an absolute one, and sue him for the unpaid purchase money, or she could reclaim the property as her own, and in accordance with the express provision of this agreement, retain the instalments already paid, amounting to $2,288.63. But she could not pursue both these inconsistent remedies. As matter of fact, on or about April 1,1914, she repossessed herself of what was left of the property, by an action of replevin. Having thereby elected to treat the transaction as no sale, she is now debarred from collecting the purchase price in full, as she might have done if she had elected to treat the transaction as a valid and absolute sale. Bailey v. Hervey, 135 Mass. 172. Whitney v. Abbott, 191 Mass. 59. Frisch v. Wells, 200 Mass. 429. The rights of the parties are defined by their express written agreement; there is therefore no basis for the claim of rental-value under the second count. The parties have not argued the demurrer, as the issues raised thereby were also raised by the exceptions. Exceptions overruled. Appeal dismissed.