for the price under his absolute promise to pay the same are inconsistent and not cumulative remedies, and ordinarily the election of the seller to resort to the latter is held a waiver of any right thereafter to retake possession, as the election to resort to such remedy transfers and confirms the title in the buyer; 20 and this has been held true though the contract provided that the title should remain in the seller until the price was fully paid and a bill of sale given.1 So where, on the insolvency of the buyer, the seller proved his claim for the unpaid part of the price, and recovered a dividend from the estate, it has been held that he could not thereafter assert any right to retake possession, and the same has been held true where the seller proved his claim for the price, as a general claim, against the estate of the buyer in bankruptcy. Likewise, where the seller brought an action for the price, arresting and holding the body of the buyer until he released himself by taking the statutory oath, it has been held that he was precluded from thereafter maintaining replevin for the property though he failed to enter the writ in the first action. Though the action was for only a part of the price due at the time of the action, this will not prevent it from operating as a vesting of the title in the buyer and preclude the seller from retaking possession on the default of the buyer in paying later instalments, as there cannot be any difference in principle whether the action brought upon the contract is for the total balance of the price, or for a portion thereof. In either case the action is based upon the vesting of title in the buyer, and this is what constitutes the election.

And it is held, where the contract

1916A 925; 1 Ann. Cas. 268; 16 Ann. Cas. 1057; Ann. Cas. 1917D 465.

The corollary of this rule is also true and the retaking of possession is generally held a waiver of the seller's right thereafter to recover the unpaid part of the price. See infra, par. 785.

1. Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A.(N.S.) 144. See also Eilers Music House v. Douglass, 90 Wash. 683, 156 Pac. 937, L.R.A.1916E 613.

20. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 49 So. 942, 16 Ann. Cas. 1054; Peasley v. Noble, 17 Idaho 686, 107 Pac. 402, 134 A. S. R. 270, 27 L.R.A. (N.S.) 216; Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144; Chase v. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A. 1916A 912; Francis v. Bohart, 76 Ore. 1, 143 Pac. 920; 147 Pac. 755, 2. Crompton v. Beach, 62 Conn. 25, L.R.A.1916A 922; Winton Motor 25 Atl. 446, 36 A. S. R. 323, 18 Carriage Co. v. Broadway Automo- L.R.A. 187. bile Co., 65 Wash. 650, 118 Pac. 817, 37 L.R.A. (N.S.) 71; Eilers Music House v. Douglass, 90 Wash. 683, 156 Pac. 937, L.R.A.1916E 613; Norman v. Meeker, 91 Wash. 534, 158 Pac. 78, Ann. Cas. 1917D 462.

3. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054.

4. Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144.

5. Eilers Music House v. Douglass, Notes: 50 A. S. R. 37; 32 L.R.A. 90 Wash. 683, 156 Pac. 937, L.R.A. 463; 23 L.R.A. (N.S.) 144; L.R.A. 1916E 613.

of sale is entire, that the institution of an action for the price of a part of the articles will confirm the title in the buyer to all of the articles embraced in the contract. On the other hand the broad view is taken, in some cases, that merely bringing an action by the seller for the price and prosecuting it to judgment do not waive the right to retake the property. The reason given for this is that the seller has the right to receive the price, and the judgment merely preserves the obligation of the buyer's promise to make payment by putting it in another form, and there is no inconsistency between an attempt to get the money and a reservation of title if the attempt is not successful; and that in asserting title the seller does not treat the contract as void in its inception, but it is treated as subsisting, and enforced according to its terms. It has been held that where the seller has taken possession and afterward brings suit on the purchase money notes this confirms the title in the buyer at his election and the seller's continued possession becomes wrongful; still the bringing of such action does not relate back so as to render the seller's possession prior thereto wrongful."

777. Special Provisions as Affecting Rule.-The parties may expressly provide that the institution of an action by the seller for the price shall not affect his right to retake possession, and effect will be given thereto.10 And it is held that where the contract provides that the title to the property sold is to remain in the seller until the purchase price, with interest thereon and any judgment rendered therefor, is paid in full, the seller, on default of the buyer, may prosecute to judgment an action for the price, and title will not pass until such judgment is paid, and therefore until then the seller may retake possession.11 So, under a contract providing that the buyer shall give notes for the price, the title to remain in the seller until a mortgage is given on the property sold to secure such notes or the price is paid, it has been held that the seller may, upon the failure of the buyer to give such mortgage, recover judgment on the notes and subsequently recover the goods by replevin.12 Where, under the terms of the con

6. Francis v. Bohart, 76 Ore. 1, 143 Pac. 920, 147 Pac. 755, L.R.A.1916A

922.

7. Ratchford V. Cayuga County Cold Storage, etc., Co., 217 N. Y. 565, 112 N. E. 447, L.R.A.1916E 615.

Notes: 23 L.R.A. (N.S.) 145; L.R.A. 1916A 925; Ann. Cas. 1917D 466.

undecided the question as to the effect of a recovery of judgment, by way of anticipation for the entire purchase price, under an election to declare due future instalments).

9. Chase v. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A.1916A 912. 10. Note: L.R.A.1916A 925. 11. Notes: 23 L.R.A.(N.S.) 145; L.R.A.1916A 925.

8. Ratchford V. Cayuga County Cold Storage, etc., Co., 217 N. Y. 565, 112 N. E. 447, L.R.A.1916E 615 (the 12. Campbell Printing Press, etc., court, however, in this case, which Co. v. Rockaway Pub. Co., 56 N. J. involved a recovery of judgment for L. 676, 29 Atl. 681, 44 A. S. R. 410. the overdue instalments only, leaves Note: 1 Ann. Cas. 268.

tract, the seller, on the nonpayment of a note given for the purchase price, was entitled to resume possession of the property sold and to consider all payments made as for the use of the property while in the hands of the buyer and it was further agreed that on the retaking of possession the note should be surrendered and canceled, it was held that the seller could not, after maintaining a proceeding to collect the note and receiving a dividend by virtue of such proceeding, sustain an action of replevin to recover the property, as the dividends so received were not to be considered as on the same basis as voluntary payments.13

778. Attempt to Enforce Mechanic's Lien.-The better view seems to be that a mechanic's lien may be enforced for the price of materials, though they are furnished under a contract which provides that the title thereto shall remain in the seller until paid for; 14 and, on the theory that the right to such a lien implies that the title has passed, it has been held that the institution of proceedings to enforce the lien is inconsistent with the title remaining in the seller, and his resort thereto will preclude his subsequent assertion of title under the reservation in the contract of sale.15 On the other hand it has been held that the seller does not, by instituting wholly abortive proceedings to enforce a materialman's lien, based upon the mistaken theory that the title has passed to the buyer, make an election which prevents him, after the dismissal of such proceedings, from bringing suit in replevin based on the theory that the title still remains in him.16 And the view has been taken that, though a claim for a mechanic's lien may be enforced for the price of materials or the like sold under a contract reserving title in the seller until the price is paid, the resort to such proceedings is not inconsistent with the rights of the seller under his reservation of title and does not preclude him, upon the dismissal of the mechanic's lien proceeding without having gained any benefit therefrom, from asserting his right as seller to retake possession, as the assertion of the right of the lien does not necessarily imply that the buyer has acquired absolute title to the materials constituting the basis of the lien, but only that he has acquired the title necessary to its creation which may be such an interest or title as the buyer under a conditional sale acquires.17

13. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187.

14. Warner Elevator Mfg. Co. v. Capitol Invest., etc., Ass'n, 127 Mich. 323, 86 N. W. 828, 89 A. S. R. 473.

15. Ratchford v. Cayuga County Cold Storage, etc., Co., 217 N. Y. 565, 112 N. E. 447, L.R.A.1916E 615 (referring to an earlier case); Van Winkle v. Cromwell, 146 U. S. 42, 13

S. Ct. 18, 36 U. S. (L. ed.) 880 (following an Alabama case). See also Bailey v. Baker Ice Mach. Co., 239 U. S. 268, 36 S. Ct. 50, 60 U. S. (L. ed.) 275,

Notes: 23 L.R.A. (N.S.) 145, 146; Ann. Cas. 1917D 466.

16. Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 U. S. (L. ed.) 828.

17. Warner Elevator Mfg. Co. v.

2

779. Exercise of Right to Retake Possession Generally.-On the default of the buyer the seller may, ordinarily, exercise his right to retake possession without resort to the courts. 18 And it is said that the seller has an implied irrevocable license to enter the buyer's premises and remove the goods on breach of the contract; 19 and, a fortiori, if the right so to re-enter is expressly reserved to the seller it cannot be revoked by the buyer and, after an attempted revocation, it may be exercised without liability to the buyer for trespass.20 It is generally held that, if the seller's right to enter and remove the subject. matter of the sale is resisted, he may use such force as is necessary, without being liable civilly to the buyer; and, a fortiori, the fact that the seller by a falsehood obtains entrance to the premises of the buyer, the right to enter and remove the property being expressly reserved, will not render his entrance a trespass. Where the seller or his servant has entered on the premises of the buyer and, with her consent, taken possession of the chattel, he is not guilty of assault in removing the buyer from the property upon which she has sat down in an effort to regain the possession and prevent the removal, if no more force is used than is necessary to effect that result. On the other hand, it has been held that the seller has no right to enter into the buyer's dwelling without his consent for the purpose of retaking possession of the property unless the right so to enter is expressly reserved. And in some cases the right of the seller to use force in retaking possession is denied, though the right to enter and take the goods is reserved in the contract, and he is required to resort to the courts when the buyer refuses to consent to his entry and the exercise of his right to repossess himself of the chattels," The seller may render himself liable in tort if he exercises his right to retake possession in an unreasonable manner; thus he is civilly liable if he uses

Capitol Invest., etc., Ass'n, 127 Mich. 323, 86 N. W. 828, 89 A. S. R. 473.

Notes: 52 L.R.A. (N.S.) 564; L.R. A. 1916A 925.

18. W. T. Walker Furniture Co. v. Dyson, 32 App. Cas. (D. C.) 90, 19 L.R.A. (N.S.) 606.

Notes: 133 A. S. R. 567; 19 L.R.A. (N.S.) 606.

19. Note: 89 Am. Dec. 128. 20. W. T. Walker Furniture Co. v. Dyson, 32 App. Cas. (D. C.) 90, 19 L.R.A.(N.S.) 606; Lambert v. Robinson, 162 Mass. 34, 37 N. E. 753, 44 A. S. R. 326. See also Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 A. S. R. 485; North v. Williams, 120 Pa. St. 109, 13 Atl. 723, 6 A. S. R. 695.

6

1. W. T. Walker Furniture Co. v. Dyson, 32 App. Cas. (D. C.) 90; 19 L.R.A. (N.S.) 606; Lambert v. Robinson, 162 Mass. 34, 37 N. E. 753, 44 A. S. R. 326.

Notes: 19 L.R.A. (N.S.) 606; L.R.A. 1015F 673.

2. North v. Williams, 120 Pa. St. 109, 13 Atl. 723, 6 A. S. R. 695. As to what constitutes a trespass generally, see TRESPASS.

3. Biggo v. Seufferlein, 164 Ia. 241, 145 N. W. 507, L.R.A.1915F 673. 4. Notes: 89 Am. Dec. 128; 133 A. S. R. 567.

5. Notes: 19 L.R.A. (N.S.) 607; L.R.A.1915F 675.

6. Flaherty v. Ginsberg, 135 Ia.

unnecessary force in the exercise of his reserved right to enter on the premises of the buyer and retake the chattel sold. The right of the seller to retake possession may, under particular circumstances, be subordinate to the rights of the buyer arising out of the necessity of protecting the life or health of himself or members of his family.

780. Replevin.-The seller may on the default of the buyer enforce his right to retake possession by an action of replevin; and the fact that the subject matter of the sale is a fixture annexed to the realty but removable as between the seller and the buyer does not affect the right of the seller to recover possession of the same by replevin.10 It seems that a previous demand for the possession is not essential before the institution of an action of replevin by the seller, whose right to possession has become absolute on the default of the buyer.11 If, however, a demand for payment is necessary to place the buyer in default and entitle the seller to possession such demand must be made. before replevin will lie,12 as where, after default in payment of the price, the seller has received partial payment with the understanding that further time should be given the buyer within which to make payment.13 For the reason that the buyer's possession is not wrongful until a demand for the possession by the seller is made, it is held in a number of cases that the seller must demand a surrender of the possession before instituting his action of replevin; 14 still in such a case it also seems, under the general principles governing replevin, that the absolute denial of the seller's right to possession will constitute a waiver of the necessity for a prior demand.15

781. Detinue and Trover.-The seller may enforce his right to possession by an action of detinue. 16 By reason of his retention of

9. Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, Ann. Cas. 1913C 659, 36 L. R. A. (N.S.) 594; Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144; Singer Mfg. Co. v. Cole, 4 Lea (Tenn.) 439, 40 Am. Rep. 20; Page v. Urick, 31 Wash. 601, 72 Pac. 454, 96 A. S. R. 924.

Notes: 89 Am. Dec. 128; 133 A. S. R. 568; 32 L.R.A. 459.

10. Page v. Urick, 31 Wash. 601, 72 Pac. 454, 96 A. S. R. 924.

11. Singer Mfg. Co. v. Cole, 4 Lea

(Tenn.) 439, 40 Am. Rep. 20.

12. People's Furniture, etc., Co. v. Crosby, 57 Neb. 282, 77 N. W. 658, 73 A. S. R. 504.

Note: 133 A. S. R. 572.

As to when demand is necessary before instituting replevin, see gen. erally, REPLEVIN, vol. 23, p. 888 et seq

13. People's Furniture, etc., Co. v. Crosby, 57 Neb. 282, 77 N. W. 658, 73 A. S. R. 504.

Note: 133 A. S. R. 572.

14. Notes: 133 A. S. R. 571; 39 L. R. A. 462.

15. See REPLEVIN, vol. 23, p. 888, as to waiver of necessity for demand in replevin.

16. Cable Co. v. Griffitts, 160 Ala. 315, 49 So. 577, 135 A. S. R. 100. Note: 32 L. R. A. 460.

See generally, DETINUE, vol. 9, p. 148 et seq.