Cushman v. Jewell

Mullin, P. J.:

This action was brought by the plaintiff, before a justice of the peace of Oneida county, to recover from the defendant the value of a sewing machine which defendant had taken and converted to his own use. The facts, as proved on the trial, were substantially as follows, viz.: On the 4th March, 1874, the defendant sold to Mrs. Esther Gr. Knowles a Davis sewing machine for twenty-five dollars, payable in monthly installments, with interest, and took from her a note and a receipt signed by her, containing the following clauses and conditions, viz.: It is expressly understood that the said E. B. Jewell neither parts with, nor do I acquire any title to said machine until said note is fully paid, and it is expressly understood that I am not to remove said machine from my present place of residence, Borne, Oneida county, N. Y., without the consent of the said E. B. Jewell. In case of default of payment defendant was authorized to enter on the premises of Mrs. Knowles and take and remove said machine and collect all reasonable charges for the use of the same.

Underneath the signature of Mrs. K. is the following: I herein further agree that if I violate any part of the within I forfeit all that has been paid on the within, or may have been paid on the same.

On the 7th of May, 1874, Mrs. K. paid -on said notes five dollars; on the-first of June, five dollars; ón the first of Jidy, five dollars. On or about the 25th of July, 1874, plaintiff, by his agent, bought of Mrs. Knowles the said machine, and, on the next day, took it from her shop and carried it to Williams’ Hotel, in Borne, from which place it was taken in a few days, and about the first of August, by the defendant. Plaintiff demanded the machine of defendant, who refused to deliver it. On the first of August Mrs. K. went to defendant’s house and tendered to defendant five dollars, being the installment falling due in August, and also five dollars and fifty-six cents, being the installment not paid in April, and interest thereon. The defendant refused to receive it, and Mrs. K. retained the money for the defendant.

The justice rendered judgment in favor of the plaintiff for thirty-seven dollars and fifty cents, the value of the machine, and five dollars costs.

On appeal to the county court the judgment of the justice was reversed. The plaintiff appeals to this court.

Under the contract between Mrs. Knowles and the defendant, evidenced by the paper called a receipt, Mrs. K had no title to the machine when she sold to, or exchanged with, plaintiff’s agent, and could not, for that reason, convey any to him. The removal of the machine by the plaintiff from Mrs. K.’s house forfeited her right to the possession of the machine, but it did not necessarily annul the sale to her. If she paid the balance due on the machine before defendant took possession her title became perfect, and the plaintiff acquired a valid title to it under his agreement with Mrs. K. The note made by Mrs. K. is not before us, nor are its contents set out in the case. The receipt is dated fourth of March, and if that was the date of the note, the whole money became due on the fourth of August, the price being twenty-five dollars, and payable in monthly payments of five dollars each. The installments would become due on the fourth of each month if, as we must assume, the note bore date the fourth of March.

It may be that the installments were payable on the first of each month, but the only evidence that they were payable on that day is the fact that two of the three installments indorsed were paid on the first day of the month.

The defendant took possession of the machine on the first day of August. On the same day Mrs. K. tendered to the defendant the whole amount remaining unpaid on the note.

When possession was taken, the installment payable on the first of August was not due, but it and the installment due in April were tendered to the defendant, and, for the purposes of this case, the tender was equivalent to payment.

There was a default of payment of the installment due in April, but the defendant permitted Mrs. K. to retain and use the machine for several months thereafter, and thereby waived sircli forfeiture. (Hutchings v. Munger, 41 N. Y., 155.) In case of a conditional sale, when the title is to vest in the purchaser upon payment of the price, the purchaser may perfect his title to the property at any time by a tender of the price, although it is payable by installments, and they are not all due. If the debt was payable with interest, the purchaser must pay interest until the maturity of the debt.

Mrs. K., when she made the tender, was not informed that the defendant claimed that the payments theretofore made were forfeited, and that she must'pay or tender such amount in addi tion to the amount remaining due. It was the duty of the defendant, if he insisted on such forfeiture, to have informed Mrs. El thereof, in order that she might pay or tender it. Failing to make such claim, he could not afterward object to the amount of the tender. If the foregoing views are correct, it follows that the defendant was liable in trover for converting the machine. But having inserted in the complaint a waiver of the tort, he could not arrest the defendant upon an execution on the judgment, as he may now do, if the amendment striking out the waiver was permitted to stand. Such an amendment cannot be allowed. It changed the nature of the action, and subjected the defendant to imprisonment on the execution. The evidence does not make a case, allowing plaintiff to waive the tort and sue on contract. That can only be done when the wrong-doer has sold or otherwise disposed of his property, so that it may be assumed he received the value of it in money or its equivalent.

The judgment of County Court should be reversed and that of justice affirmed.

Present — r Mullin, P. J., Smith and Noxon, JX

Judgment of County Court reversed, and that of justice affirmed.