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 docs 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. 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. 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.8 780. 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.18 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. (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. 11. Singer Mfg. Co. v. Cole, 4 Lea 148 et seq. the legal title, the seller may maintain trover against either the buyer or a third person for the conversion of the subject matter of the sale if his right to retake possession is wrongfully denied.17 And it is the general rule that, if the buyer transfers the property, as distinguished from his special interest therein, to a third person, either by a sale or mortgage, before performance of the stipulated conditions, he makes himself liable for a conversion.18 Likewise the purchaser from or mortgagee of the buyer who takes or attempts to exercise rights in the property inconsistent with the rights of the seller is also guilty of a conversion,19 and it is held that a purchaser in good faith from the buyer, if he sells the property again, is liable for a conversion.20 This, however, presupposes that the purchaser from or mortgagee of the buyer does not acquire title free from the seller's reservation of title. An action of trover may be commenced by the seller at the time the conversion takes place, although the payments under the contract of sale may not have matured. The authorities are not in accord as to the measure of damages, recoverable by the seller, in trover against one claiming under the buyer. In some cases the view is taken that the seller cannot recover to exceed the amount of the unpaid purchase price; in other cases it is held that the seller may recover the full value of the property. In no case should the seller be permitted to recover more than the value of the 17. Ivers, etc., Co. v. Allen, 101 Me. 218, 63 Atl. 735, 115 A. S. R. 307, 8. Ann. Cas. 128; Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144; Warner Elevator Mfg. Co. v. Capitol Invest., etc., Ass'n, 127 Mich. 323, 86 N. W. 828, 89 A. S. R. 473; Woods v. Nichols, 21 R. I. 537, 45 Atl. 548, 48 L.R.A. 773; Kimball v. Costa, 76 Vt. 289, 56 Atl. 1009, 104 A. S. R. 937, 1 Ann. Cas. 610. Notes: 133 A. S. R. 568; 32 L.R.A. 460; 8 Ann. Cas. 129. As to who may maintain an action for conversion of personal property generally, see TROVER. 18. Ivers, etc., Co. v. Allen, 101 Me. 218, 63 Atl. 735, 115 A. S. R. 307, 8 Ann. Cas. 128. Note: 8 Ann. Cas. 129. see another constitutes conversion, generally, TROVER. As to the liability of an agent, who sells the property of another, to the latter for conversion, see supra, par. 699. 1. Note: 8 Ann. Cas. 129. See supra, par. 752 et seq., as to the validity generally of the reservation of title in the seller as to purchasers from the buyer. 2. Note: 8 Ann. Cas. 129. 3. Davis v. Bliss, 187 N. Y. 77, 79 N. E. 851, 10 L.R.A. (N.S.) 458; Woods v. Nichols, 21 R. I. 537, 45 Atl. 548, 48 L.R.A. 773. See also Rose v. Story, 1 Pa. St. 190, 44 Am. Dec. 121. Note: 10 L. R. A.(N.S.) 458. As to the measure of damages recoverable in trover where the plaintiff has a 19. Woods v. Nichols, 21 R. I. 537, special interest only, see generally, 45 Atl. 548, 48 L.R.A. 773. Note: 8 Ann. Cas. 129. 20. Woods v. Nichols, 21 R. I. 537, TROVER. 4. Angier v. Taunton Paper Mfg. Co., 1 Gray (Mass.) 621, 61 Am. Dec. 45 Atl. 548, 48 L.R.A. 773. As to 436. when the sale of the property of Note: 10 L.R.A. (N.S.) 459. property at the time of the conversion, though this is less than the amount of the price unpaid.5 782. Remedy of Seller against Buyer's Trustee in Bankruptcy.— Where the trustee in bankruptcy of the buyer takes subject to the rights of the seller, the cases recognize the right of the seller to intervene in the bankruptcy proceedings involving the estate of the buyer, and secure an order on the trustee for the return of the property, or for the payment of the balance due on his contract, or, if the property has been sold, an order for the proceeds of the sale if less than the amount due on the price; or the seller may submit to a sale of the property under the same conditions; that is, that the proceeds of the sale up to the amount due him be paid him by the trustec. And it has been held that, without tendering the unpaid price, the trustee in bankruptcy of the buyer has no equitable standing to prevent the seller from recovering the property under a writ of replevin." If the contract of sale is duly recorded, as required by the state statute, the rights of the seller are fully protected, and he may assert his title in an action of trover against a purchaser of the property at a bankruptcy sale, though the trustee sells the property of the bankrupt free from liens and incumbrances, it not appearing that the seller has done any act which would estop him from such assertion of title; and his mere failure to claim the property or assert his title thereto will not operate as such an estoppel. Recovery of Price or Damages for Breach of Contract 783. In General.-If there is no absolute promise on the part of the buyer to pay the price but he is given the optional right to make the payments stipulated for in the contract and thereby acquire title to the subject matter of the sale, he may withdraw from the contract and avoid any further liability for the price. On the other hand the default of the buyer in paying the price as stipulated does not itself operate as a rescission of the contract, if his promise to pay is absolute, and in such a case it is generally recognized that the seller has the right to recover the price and is not restricted to the right to retake possession. 10 And it is held that a statute providing as regards the 5. Woods v. Nichols, 21 R. I. 537, 45 Atl. 548, 48 L.R.A. 773. Note: 10 L.R.A. (N.S.) 459. 6. See supra, par. 765 et seq. 7. Note: 38 L.R.A. (N.S.) 558. 8. Myrick v. Liquid Carbonic Co., 137 Ga. 154, 73 S. E. 7, 38 L. R. A. (N.S.) 554. 9. Williamson v. Hill, 154 Mass. 117, 27 N. E. 1008, 13 L.R.A. 690. Note: 32 L.R.A. 458. 10. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187; White v. Solomon, 164 Mass. 516, 42 N. E. 104, 30 L.R.A. 537; Madison River Livestock Co. v. Osler, 39 Mont. 244, 102 Pac. 325, 133 A. S. R. 558, Francis v. Bohart, 76 Ore. 1, 143 Pac. 920, 147 Pac. 755, L.R.A.1916A 922; International Harvester Co. v. Pott, 32 S. D. 82, 142 N. W. 652, Ann. Cas. 1916A 327; Sing |