Matthews v. Lucia

The opinion of the court was delivered by Rowell, J. By the terms of the conditional sale, the wagon was to remain the property of the defendant until the note given for the price thereof was fully paid according to its tenor, the last installment falling due on August 1, 1879, and in default of. such payment, the defendant had the right to take the wagon without “ let or hindrance,” and the plaintiff was to forfeit all he had paid towards it. After the last installment fell due, the plaintiff made, and the defendant accepted and received, payments on the note, the plaintiff retaining possession of the wagon. It is claimed that this was a waiver of all prior causes of forfeiture arising from default of payment, and that it was necessary for the defendant to make demand of payment before he could thereafter take the wagon for non-payment. Hutchings v. Munger, 41 N. Y. 155; Manufacturing Co. v. Teetzlaff, 13 Reporter, 511; Taylor v. Finley, 48 Vt. 78. If this wore so, the bringing of the suit by the defendant for the recovery of the balance due on the note, was a sufficient demand. The attachment of the wagon on the writ in said suit was not a waiver of the defendant’s right to the wagon under the conditional sale, nor an estoppel against his afterwards asserting that right in the mannerhe did. Child & Benton v. Allen, 33 Vt. 476. Judgment reversed, and cause remanded.