The plaintiff brings this action to recover damages for the alleged conversion by the defendant of a piano which the plaintiff claims to have purchased of her husband, Jamies Orcutt. Such purchase was evidenced by a bill of sale under seal dated May 11, 1896, which recited a full consideration of $204.
The piano was originally purchased by Orcutt of one J. W. Reid under a special contract by the terms of which the title to the piano was to remain in the vendor until the purchase price thereof ($350) *239had been fully paid. Orcutt paid $50-at the time of executing the contract, but has paid nothing since. He, however, at the request of Eeid, gave the latter his promissory note for $300, the balance of the purchase price,- and after this note matured Eeid brought an action thereon in the Supreme Court. Issne was joined by the service of an answer, and while the action was pending Orcutt sold the piano to his wife. Subsequently.the action was discontinued by stipulation of the attorneys for the respective parties. The contract in question was assigned by Eeid to the defendant Eickenbrodt, who immediately took the piano into his possession, and this action was thereupon brought.
The plaintiff’s title to the piano was doubtless subject to whatever interest the defendant, as assignee of Eeid, acquired therein by reason of the original contract óf sale. This contract, as has been stated, was a conditional one, and by its provisions the vendor reserved to himself the right to terminate the same and take the piano from the possession of the vendee in the event that the latter did not make his payments according to the terms of the contract, which it is virtually conceded he failed to do. It consequently follows that the plaintiff, as vendee of her husband, obtained no title to the piano as against the defendant, provided the latter is in a position to assert the right which the contract secured to his assignor..
The simple question, therefore, to be determined upon this review is whether or not the defendant is estopped from terminating the contract and claiming title to the piano by reason of the action brought upon the $300 note by his vendor Eeid.
This note, as has been stated, represents the unpaid purchase price of the piano, and although there is some evidence tending to show that it was taken by Eeid as collateral to, and not in satisfaction of, the contract, it was nevertheless received by him in lieu of the money payments therein specifically provided; for he not only had it discounted at a bank, but after it matured he attempted to collect the same by action, alleging in his complaint that the note was given for a good and valuable consideration. This, we think, was clearly an election on the part of Eeid to pursue one of two inconsistent remedies, either of which was available to’ him at the time such election was made. And having elected to resort to an action upon *240the note, he has concluded himself and all persons claiming under him from asserting his or their right under the contract to retake the piano. In other words, he has treated the note as a payment of the purchase price of the piano, and has thereby deq) rived himself and his assignee of the right to resort to the alternative remedy. (Wright v. Pierce, 4 Hun, 351; Boots v. Ferguson, 46 id. 129 ; Kinney v. Kiernan, 49 N. Y. 164 ; 6 Am. & Eng. Ency. of Law [1st ed.), 250.)
It is urged, however, that the action thus commenced having been discontinued before it had been prosecuted to judgment, the defendant is not thereby estopped from asserting his right under the contract to take the piano into his possession; but this contention, we think, is not tenable, for the election was made when the action was commenced, -and it would be manifestly unjust to permit the vendor, after deliberately making such election, to reinstate himself to the remedy furnished by the contract, especially in view of the fact that the plaintiff had purchased the piano and paid full value therefor before the stipulation of discontinuance was entered into.
The learned trial judge found, as a fact, that the plaintiff is not the owner of the property described in the complaint, and that she was not entitled to the immediate possession of the same, and it is contended that this finding is conclusive upon this court, inasmuch as the record does not show that it contains all of the evidence bearing upon the disputed questions of fact. This contention is also one which we think cannot be Sustained; for the reason that the learned county judge certifies that the case contains “ all the testimony given, all of the exhibits of the parties and all the proceedings had upon the trial,” and this is equivalent to certifying that it contains all the evidence which has a bearing upon any disputed question of fact.
The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.