(dissenting.) The action is trover, brought against this defendant, who is the assignee of a copartnership known as the “ Clark Manufacturing Company,” under an assignment for the benefit of creditors. The plaintiff and the Clark Manufacturing Company, on the 29th day of January, 1880, entered into a wu-itten agreement by which the plaintiff agreed to sell to that company a certain amount of machinery. The agreement and the transfer of the property were to be perfected, by the terms of the contract, on or about the 1st day of April thereafter, when any changes which certain persons, kngwn as Mix Bros., should deem expedient to be made in the choice or character of the machinery, or in the prices of the machinery or merchandise, should be made. The contract declared that “said machinery shall be the property of the said Brewer, in care, custody, and charge of said Mix Brothers, until paid for.” Payments were to be made as follows: $500 in cash; $500, and interest on the whole amount unpaid, on the 1st day of April, 1881; and $1,000, and interest on the whole amount unpaid, on the 1st day of April in each year thereafter until the whole should be paid. Nine notes were given for part of the purchase money, three of which were unpaid in the month of April, 1887, and still remain unpaid, and are held by the plaintiff. They are negotiable instruments. The Clark Manufacturing Company made payments of these several installments up to the month of April, 1887, when, on the 17th day of that month, they made a general assignment of all their property to the defendant for the benefit of their creditors. At that time there remained unpaid three of the said promissory notes of $1,000 each, but only one of them was due at the beginning of this action. A demand having been made upon the defendant by the plaintiff for the possession of the property coining into his hands as such assignee, and the demand having been refused, this action was brought to recover the value of all of such property, the complaint describing it in detail, and alleging its value to be $5,000. Upon the trial of the action it appeared that the Mix Bros., who stood, in some sort, in the relation of custodians of the property for the benefit of both the seller and the purchasers, abandoned the shops of the Clark Manufacturing Company, the property which they had theretofore had in charge remaining with the purchasers. It was sought to be maintained by the counsel for the defendant, that such act on the part of Mix Bros, amounted to a waiver of any condition in the original sale, and that, consequently, the plaintiff could not maintain this action. Such objection, however, was properly overruled by the learned trial judge as a question of law; he holding, in substance, that the question was one of fact, and should be submitted to the jury in the event of the case going to the jury on other questions. The ownership and possession of the three unpaid notes being alleged in the complaint still to be in the plaintiff, and such possession being shown at the time of the trial, objection was made by the counsel for the defendant that a recovery could not be had in this action except upon the surrender of such notes. This contention was approved by the trial judge. The plaintiff’s counsel, however, refused to surrender the notes to the defendant, and contended that he had the right to the possession of the same, and the right to maintain an action hereafter upon them in case the verdict of the jury in this action should not be adequate to pay the whole amount of the unpaid purchase price of the property. The court gave the plaintiff’s counsel leave to surrender the notes and so maintain this action, but this was declined. The counsel then stated to the court:
*249“ We do not make an unconditional offer to surrender these notes, because we think we have a right in case there is any balance due on these notes after applying the amount that the jury shall find due us, to proceed against the makers for the deficiency."
There is nothing ambiguous in the terms of the original written agreement. It, as a whole, is a plain contract for the conditional sale of personal property, the title to remain in the seller until paid for, in pursuance of the terms of commercial paper given at the time of the transfer of the property. But the Clark Manufacturing Company was to have the continuous possession and use of the property, so long as they paid the notes as they became due. The ■defendant, not being deemed a purchaser for value, can have no defense in this action which was not available to his assignors. They, having agreed that the title should remain in the plaintiff, were bound thereby until the property was entirely paid for, unless the plaintiff had voluntarily waived ■the conditional agreement, and by word or act had made it an absolute sale. The transaction occurring in the year 1885, by which the Mix Bros, left the shops of the Clark Manufacturing Company, indicated strongly that it was not the purpose of the plaintiff further to insist upon retention by himself of the title to the property. But such intention, as manifested by the acts of Mix Bros., did not present itself as a question of law, but as a question of fact, and consequently was rightly disposed of by the court below. It will be observed, therefore, tiiat this presents a case of election of remedies in a somewhat different light from any that have appeared in the courts of this state. There is a class of cases, many of which are cited in the opinion of the judge at special term on the motion for a new trial, which it is not necessary to cite here, which show, under varying facts and circumstances, a uniformity of decision to the effect that when a party, having the right to avail himself of more than one remedy, takes one of them in the courts, he is precluded thereafter from availing himself of the other. These authorities, however, proceed generally upon the ground that there has been an election of a judicial remedy which is inconsistent with the subsequent remedy which is sought to be obtained, growing out of the same transaction. The peculiarity of this case consists in the fact, not that the plaintiff liad undertaken by process of law to avail himself of the collection of the promissory notes, for he had not done that, but, rather, that, being in possession of such commercial paper, which was negotiable, he thereby assumed an attitude in this forum so inconsistent with the claim made in this action that the court could not properly permit him to proceed; for otherwise the rescission of the original contract, which the beginning of this action necessarily made, would not be a real, but a sham, rescission, and an action might still be maintained by the plaintiff or his transferee upon each of these three unpaid notes. I am of the opinion, therefore, that while the original agreement was a conditional sale only, and not an absolute one, of the personal property, and while the plaintiff had a right, in case of failure to pay according to the terms of the agreement, to possess himself of the property, or to maintain trover for its value, yet an active duty was devolved upon him, and that was to restore, before recovering a verdict in this form of action, the negotiable notes whicli were still outstanding and held by him. The judgment and order should be affirmed, with costs.