It is unnecessary to say whether the transaction under which defendant took possession of the automobile was a lease, a conditional sale or a mortgage. The rights and the obligations of the parties to the contract are to be ascertained, not from the classification or name to be given to the transaction, but from the terms of the written contract or memorandum of agreement which they signed.
Under date of August 5, 1921, the parties executed a written contract in all respects expressed in the same language used in the contract of August 5, 1922, save that (a) the total sum agreed upon "for the rental, hire and use" of the property was $2200, (b) the installments to be paid were somewhat different, (c) the last note was in the sum of $1200 and was to be paid on August 15, 1922, and (d) the right or privilege to purchase was to be exercised on August 15, 1922. At defendant's request, the time for payment of the last note of $1200 was extended and the method adopted for accomplishing and expressing the extension was by executing the contract of August 5, 1922 (the cost of insurance and perhaps other expenses being added to the $1200 and thus making up the new total of $1396). Upon the execution of the second contract, the note for $1200 was cancelled.
Under the first contract the defendant's obligation to pay $2200 was absolute and unconditional; and under the second contract his obligation to pay the $1396 was likewise absolute and unconditional. Each of the promissory notes given by him in pursuance of the terms of the two contracts was an absolute promise to pay the amount there named. Neither by the terms of the note nor by the terms of the contract was the defendant's obligation to pay the last note of $846 (the note now sued on) conditional upon defendant's not exercising an option to return the car to the plaintiff, whether before *Page 168 or after its due date, August 5, 1923. There was no such condition. On the contrary, he expressly obligated himself "that at the expiration of said term" he would "return and deliver" the property "in good order and condition" to the plaintiff, — unless he exercised the option, at the end of the term named, to purchase and take the car.
The only option available to him under the terms of the contract was a mere formal right to a bill of sale upon first making payment of the last note (as well as all the other notes) which he had obligated himself to pay irrespective of the exercise of this sole option.
Neither directly nor inferentially does the contract provide that the defendant could, by a return or tender of the property, absolve himself from the obligation to pay the last note or any other note or notes.
The cancellation of the earlier note of $1200 and the extension of the time for payment constituted sufficient, legal consideration for the giving of all of the notes of the second set, including the one now sued on.
I concur in the conclusion that judgment should be entered for the plaintiff for the amount claimed, notwithstanding the verdict. *Page 169