In these cases, the rights of the parties depend on the written agreement under which the chattels described in the writ of replevin were sold and delivered to the defendant corporation. It is evident upon perusal of the contract, that the negotiable promissory notes were not given or accepted in payment of the purchase price, but only taken as collateral security. Until the consideration had been fully paid in money, it is also expressly provided, that the title was not to pass, but remained vested in the vendor, while any sums paid and received in part performance “ shall be deemed to be done on account of the use of, or right to use, the said chattels.” If upon default the chattels had been taken without suit, no action to recover back the payments could have been maintained. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 506. Upon failure of performance, the vendor therefore rightfully could appropriate the partial payments in satisfaction of the rental value of the property during the time it was 'held and used by the vendee, and retake the property, even if the notes, not having been negotiated although negotiation was permitted, were not tendered to the maker either before suit or at the trial. Nor were they bound, as the defendants contend, to show rescission. The contract being conditional with the conditions unperformed, and
*219there having been no election to treat the sale as absolute, the plaintiffs’ title to the property never had been devested. Marston v. Baldwin, 17 Mass. 606. They also could resell, either before or after taking possession. Hubbard v. Bliss, 12 Allen, 590. However improvident from the vendee’s present point of view some of its provisions may have been, it cannot be said that the contract was violative of morality or against public policy, and no reason appears why it should not be enforced. Benner v. Puffer, 114 Mass. 376. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391. The vendee having defaulted, the plaintiffs could maintain replevin against the defendants, by whom the judge upon the evidence was warranted in finding the property was unlawfully held and detained. Cottrell & Sons Co. v. Carter, Rice & Co. 173 Mass. 155.
It follows from what has been said, that in the second case the plaintiff, who purchased with knowledge of the agreement, is bound by its terms and acquired no rights which it could assert in bar of the enforcement of the defendants’ title. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500.
The various rulings requested at the trial, to the refusal of which the defendants in the first case and the plaintiff in the second case excepted, were properly denied, and the exceptions must be overruled.
So ordered.