CONCURRING OPINION OF
HARTWELL, JThe decision in this case was based upon the theory of a conditional sale, although the court did not say that they regarded the transaction as of that nature. It is only on the theory that the sale was conditional that the question of election can arise.
The facts are as follows: February 12, 1900, the plaintiff agreed to “furnish” to the Kona Sugar Co. and the company agreed to accept in Honolulu certain railway material and equipment at stated prices to be delivered at stated times upon payment of drafts accompanying bills of lading. This agreement was not executed, as the drafts were not paid and the property remained for many months in the plaintiff’s possession in Honolulu.
March 13, 1901, the plaintiff agreed with the company that upon payment on the following day of $10,000 with the company’s promissory note for $37,044.53 payable in six months with interest at 7-|- per cent., secured by its first mortgage bonds of that amount it would deliver to the company “the bills of sale authorizing you to take charge of the rails, locomotives, cars, scales and other materials now awaiting delivery, upon the express condition and understanding that said rails, locomotives, cars, scales and other materials are and shall remain the property of William W. Bierce, Limited, until the full payment of the note above described, according to its terms.” This was done and the plaintiff “released the bills of lading from the drafts,” the railroad equipment “was removed from Honolulu to Kona and the railroad of the Kona Sugar Co. was con*725structed.” The note was not paid September 14, 1901, when due or afterwards. February 17, 1902, a receiver of the company was appointed who took possession of its property and carried on the business of its plantation, the company “continually getting deeper into debt and becoming' more and more hopelessly insolvent.” May 12, 1902, the plaintiff filed in the circuit court a notice of its lien on the railroad equipment and August 1, 1902, nearly a year after the note was defaulted, brought suit against the company and its receiver to enforce the lien, which in January, 1903, it discontinued, and after-wards brought this action of replevin.
By the second agreement the property remained the plaintiff’s subject to payment of the note at maturity, upon the happening of which event the company would have become its owner. Upon non-payment of the note the plaintiff had the undoubted right to claim the property as its own and the equally undoubted right, notwithstanding the non-payment, to hold the company as a purchaser, in the latter case treating the agreement as executed instead of executory, but the two rights being directly inconsistent with each other, both of them could not be exercised either concurrently or successively.
The civilians would have applied to this case the maxim “allegans contraria non est audiendus,” meaning that a man shall not be permitted to “blow hot and cold.” If when the plaintiff brought this lien suit it knew that the bonds it held as collateral security for the unpaid purchase money were absolutely of no value, as afterwards was shown, then as a matter of common business sense it would have claimed the property as its own and as not sold to the company, and would not have claimed that it was sold as was necessary to do in bringing a lien suit. It is to be inferred therefore that the plaintiff then considered that it was for its interest to treat the company as a purchaser in order to get some benefit from the bonds. There was no other possible reason for a lien suit, for if successful it could only have secured to the plaintiff a judgment which would be a preferred claim on the company’s plantation; *726whereas by claiming that the property was unsold it was the property and nothing else which was obtained. Later on, when no other change had occurred in conditions than resulted from the evident worthlessness of the bonds, the plaintiff discontinued its lien suit and claimed then for the first time that under the agreement the property had not been sold. The reason of the rule expressed in the maxim above cited is that when a right may be acquired by asserting it- and by such assertion is acquired, the assertion cannot be withdrawn in order to establish an inconsistent right. The lien suit was a formal avowal made in court of the plaintiff’s election to treat the transaction as a sale, and it was in no other way than by such avowal or its equivalent that the transaction could have become a sale. On principle it might seem that if the plaintiff simply sent to the Kona Sugar Co. a letter stating that it would hold it liable as a purchaser, this would have been an unequivocal exercise of its right to regard the property as sold, and would suffice to vest in the plaintiff the rights of a seller, and in the company the right as well as the liability of a buyer, which rights the plaintiff could not afterwards change to suit its- convenience. The cases, however, do 'not appear to go to that extent, although Woodley v. Coventry, 2 H. & C. 164, very nearly does so. In that case the defendants had sold 350 barrels of flour, to be taken from a larger quantity, to one Clarke who obtained advances of the plaintiff on the security of the flour and gave the plaintiff a delivery order on the defendants. The plaintiff sent the order to the defendants’ warehouse and left it there, the clerk saying “It is all right.” The plaintiff sold the flour to different persons and the defendants delivered part, but Clarke becoming bankrupt, refused as unpaid vendors to deliver any more. The plaintiff brought trover and it was contended for the defendants that by their contract with Clarke no property had passed, because the sale was not of any specific flour. The court held that the defendants were estoppel from denying that the property had passed.
*727If a vendor proposes to reclaim property on the ground that it is forfeited to him for non-payment of purchase money his claim should be made clearly and seasonably, and any act of his from which the buyer might properly infer that he did not claim the forfeiture would be an act beyond his recall. Nonperformance of the condition subsequent would not per se work a forfeiture, but only upon the vendor’s assertion that he claimed it. The condition once waived cannot be revived. But in the case of an executory agreement to sell, the property to pass to the buyer only upon his performance of a condition precedent, namely, upon payment, non-payment does not per se work a forfeiture of any right acquired by the intending buyer, for his only right is to acquire the property upon paying for it.
But in the one case as in the other, unequivocal words or conduct of the seller showing that he does not treat the property as forfeited or as unsold, and does treat it as sold, would preclude him from afterwards setting up the inconsistent claim that he owned the property and had not sold it. The plaintiff having exercised its option of affirming the transaction as a sale cannot disaffirm its own act.
I concur in the opinion of the court that the ease ought not to be reheard.