Hollenberg Music Co. v. Bankston

Smith, J„, (after stating the facts). When a debt, secured by a reservation of title, matures, the vendor has the right to retake the property and thus cancel the debt, or he may bring his action to recover the debt, and thus affirm the sale and waive the reservation of title; and as a general rule, the choice of inconsistent remedies abandons and debars the pursuit of any except the one chosen. Dudley E. Jones v. Daniel, 67 Ark. 208. But this choice of remedies is to be exercised in the event only that the vendor decides to take some affirmative action. He is not required to act simply because the debt has matured. Nor can his right to accept partial payments, or to give an extension of time for payments, be questioned by the vendee so long as there is no cancellation of the original debt or waiver of the reservation of title securing it. The vendor can not take inconsistent positions and he can not treat the title as being in another and yet reserved by him, nor can he say the title still rests in him, if by any arrangement he cancels the debt thus secured, but the vendor does retain the title so long as the purchase money remains unpaid, and the reservation is not in some manner waived, and the mere indulgence of extension of time for payment is not inconsistent with the continued reservation of title. Thornton v. Findley, 97 Ark. 436; National Cash Register Co. v. Riley, 74 Atl. 362. And these cases are authority for the statement that the taking of a new note and the arrangement for different terms of'payment from those of the original contract will not waive the reservation, if such last note was given only to extend the time for the payment of the original debt and not in satisfaction and cancellation of it. The judgment of the circuit conrt is therefore reversed and this canse remanded for farther proceedings not inconsistent with this opinion.