If the judgment stands, the plaintiff has had the use of the truck, bought by him from defendant May 19, 1917, from that date to March 28, 1918, and has also recovered all moneys which he paid upon the purchase price, with interest. The result seems so unjust that it becomes doubtful whether the verdict can stand. The contract was for a conditional sale, and it provided that a chattel mortgage should be given on *145the truck to secure the purchase price. Evidently the contract and mortgage were delivered at the same time. In the mortgage the plaintiff represented and warranted that he was the true and lawful owner, and had the right to sell and mortgage the truck, and that the same was clear of all claims and liens. The contract itself was upon a blank, and it evidently intended to retain the title of the property in the vendor until the mortgage was executed and filed, and contemplated that the execution of the mortgage might take place immediately or at sometime thereafter. Evidently the truck was to be considered as upon conditional sale until the mortgage was executed. Here we find two papers, executed at the same time between the same parties, the contract providing for a conditional sale and that a chattel mortgage was to be executed, and the chattel mortgage itself. If we read the two papers as forming a single paper, it cannot be said that the mortgage is ineffectual because it attempts to take from the contract of conditional sale some of its virtue, as the mortgage clause and conditional sale clause apparently came into existence at the same time, and the conditional sale clause was limited by a provision that the mortgage was to be executed. It was a question of law for the court to determine the effect of the instruments, and the court erred in submitting' that question to the jury. The papers were prepared by the defendant, and if there is a reasonable doubt about their interpretation, the benefit of the doubt goes to the plaintiff. The interpretation of the contract does not wait around to see how events turn out, but is to be based upon the contract as it was made, and at that time the most favorable view to the plaintiff was to treat himself as a purchaser of the truck, with a chattel mortgage back for the purchase price. The mere fact that he could gain a temporary advantage at this late day by repudiating that construction cannot avail him. It might be said that the plaintiff gave the vendor either one of two inconsistent remedies and is bound by either if it is properly pursued. The correct position I think is that when the plaintiff executed the mortgage, and the defendant accepted and filed it, and the plaintiff took out chattel-mortgage insurance, the truck became his subject to the chattel mortgage.
*146These views are consistent with the following cases: Nordone v. Austin Drainage Excavator Co. (184 App. Div. 309); Gaul v. Goldburg Furniture & Carpet Co., Inc. (85 Misc. Rep. 426); Lauer v. Matushek & Son Piano Co. (172 N. Y. Supp. 439); McMail v. Michaels (147 id. 516).
Tweedie v. Clark (114 App. Div. 296) is not inconsistent with these views. There the instrument was a note, with a conditional sale agreement with a mortgage clause. The note was not paid on the day it became due, but two days thereafter twenty-five dollars was paid to the bank, the owner, and indorsed thereon, and thereafter the plaintiff tendered the balance unpaid, with interest, and demanded the property, which was refused. The court properly construed the agreement as a conditional sale, but it was quite immaterial which it was. Concededly the title to the mortgaged property passed to the mortgagee upon default, but thereafter the owner accepted part payment and indorsed it upon the note. He thus recognized the note as a continuing security for the debt, and when the plaintiff tendered the balance he was entitled to the property. Apparently the defendant had gained possession by trick. It cannot be that the plaintiff can accept a part of the defaulted payment and, when the balance is tendered, refuse it and keep the property as owner. Here, concededly, if there was a chattel mortgage it was properly foreclosed, and the plaintiff cannot recover if the mortgage existed. The chattel mortgage, and the representation and guaranty of title, and the acts of the parties, make it impossible to deny the existence of the mortgage.
These considerations require a reversal. The plaintiff, by a technicality, is seeking to bring about an unjust result from a forced construction of a part of the agreement between the parties. Equity and justice require a more liberal and just interpretation of their entire contract and acts.
A reversal must also result from the charge of the court to the effect that the jury cannot find for the plaintiff unless, at some time before the signing of the chattel mortgage, the title to the truck had passed from the defendant to the plaintiff. This charge was not excepted to, but it compelled a decision for the plaintiff from the fact that there was no pretense that the defendant had any interest in the truck until the *147mortgage was given. The contention was that giving and accepting the mortgage, under the conditions shown, made an absolute sale of the property subject to the mortgage. The charge was so prejudicial and controlling, and the verdict so unjust, that although exception was not taken a reversal should follow.
The judgment is against the law and the facts, and for that reason I favor a reversal.
Lyon, J., concurs.
Judgment affirmed, with costs.