Appleton v. Norwalk Library Corp.

Park, C. J. This case depends upon the construction to be given to a certain contract, entered into between the parties, the important part of which to be considered is as follows:—“In consideration of the delivery of one complete set of the American Cyclopedia and Index, the undersigned agrees to pay D. Appleton & Co. as follows: on delivery of the set the sum of $12, and on the first day of every other month thereafter the sum of $6, until D. Appleton & Co. shall receive the full sum of $90 ; it being expressly agreed that the right of property in said books shall remain in said D. Appleton & Co. until the same are wholly paid for; and in case of failure to pay any one of said installments for thirty days after the same has become due, all of said installments, remaining unpaid shall immediately become due and payable, or the said D. Appleton & Co. may, at their option, take or cause to be taken the said books, either with or without process of law, from the possession of the said subscriber, or other representative to whom he may have delivered the same, without recourse against said D. Appleton & Co. for any money paid on account therefor; it being expressly understood that in the latter case the money so paid on account shall be for the use and wear of said books.” The books were delivered and the defendants paid a number of installments according to the contract; but finally they ceased payment, and tendered the books to the plaintiffs, informing them that they should make no further payments under the contract. The plaintiffs refused to receive the books, and after sufficient time had elapsed for all the installments to become due and payable, brought this suit. These facts are stated in the defendants’ answer, and the [8] ■whole question is, do they constitute a defense to the plaintiffs’ claim ? This contract is an absolute one. The plaintiffs agreed to sell the books to the defendants for the sum of ninety dollars to be paid in installments at certain specified times. The defendants agreed to pay that sum according to the terms of the contract. There is no conditional agreement here. It is true that the title to the goods did not pass, and could not pass until the full sum of ninety dollars had been paid, but the promise to pay that sum was absolute. Whence then comes the defendants’ right to return the books in full satisfaction and discharge of the contract, and thus leave a great part of the installments unpaid ? It is said that the plaintiffs had the right, at their option, to retake the property at any time if the defendants should fail to pay any installment for a period of thirty days after it became due. But this is a right which the plaintiffs had. in case the defendants should break the contract by nonpayment. It gives the defendants no right to return the books. It is true that if this was the only remedy which the plaintiffs had under the contract upon non-payment, as was the case in Hine v. Roberts, 48 Conn., 267, and in Loomis v. Bragg, 50 id., 228, the plaintiffs would have to abide by it and content themselves with it. But this is not their only remedy. The contract expressly further provides that, in case of such breach, all the remaining unpaid installments shall immediately become due and payable. If they become due and payable in consequence of non-payment, of course a suit could be maintained for their recovery. The plaintiffs base their suit upon this right given them in the contract; and we think it can be sustained. There is error in the judgment appealed from and it is reversed. In this opinion the other judges concurred.