(concurring) — I am of the opinion that respondent’s interest in the mill was such as gave it the right to have the engines remain in and a part of the mill by paying to appellant the balance due it upon the conditional sale contract, whether appellants consented thereto or not; since appellant had not at that time, as I view the situation, effectively exercised its right to reclaim the machinery. Until it did so, the mill company, the vendee under the conditional sale contract, could retain the machinery and consum*603mate the conditional sale by paying the balance due thereon. Respondent, I think, stood in the shoes of the mill company and could therefore exercise the same right until that right was terminated by the actual reclaiming of the property by appellant under the conditional sale contract. The fraud consisted in appellant’s inducing respondent to pay more than the balance due upon the conditional sale contract to secure the right it had to have the engines remain in the mill, upon payment of the actual balance due on the conditional sale contract, a right which was not dependent upon the will of appellant. When respondent offered to pay the balance so due, appellant was bound to state the truth as to the balance due thereon and accept payment thereof. Any amount paid by respondent to appellant in excess of the true balance due, even through honest mistake, would be recoverable by respondent. I concur upon this ground.