(dissenting.) I cannot take the same view of this case, so far as the main question is concerned, as is taken by a majority of the court. The rights and duties of the parties are such, and such only, as are expressed or necessarily implied in the contract, including the note. What is the true interpretation of that contract? In other words, what did the parties intend?
The party of the first part, Crompton, agreed to deliver into the possession of the party of the second part, the Home Woolen Company, certain machinery, which the company was at liberty to set up and use in its mill at Beacon Falls, and when the note was fully paid, and not before, Crompton agreed to sell the machinery to the company.
The company on its part agreed to give its note for the value or price of the machinery, to keep it in good order, to keep it insured for its full cost for the benefit of Crompton, and to hold the same as his property until the note or the renewals thereof should be fully paid. And it further agreed upon default of payment, or failure to keep the machinery in good order or insured, that Crompton might resume possession of the same, and might enter the premises for that purpose. In that event it was agreed that whatever payments might have been made upon the note should be for the use of the machinery, and that the note should be given up and cancelled. These, I believe, are all the provisions of the contract proper. I find nothing in it indicating a present sale; nothing evincing an intention to vest any title whatever in the company until the notes should be fully paid. There not only was no agreement by the company, even by implication, to purchase the property before such *482payment, but Crompton was careful to provide that until then there should be no such sale. If this is a fair and full statement of the contract, and I think it is, where, permit me to ask, does Crompton get his authority to convert this -transaction, by his own act, and against the will of the other party, into an absolute sale? The only answer is, that the note contains an absolute promise to pay the purchase price. Let us see. The promise is absolute to pay the sum named therein, precisely as it is in any accommodation note. The inference that it is an absolute promise to pay the purchase price of the machinery, is not warranted by the contract or by the facts of the case. It is true the parties contemplated a probable purchase; it is equally true that they contemplated a possible failure to purchase ; and they made provision for both contingencies. In the latter event the note was to be given up and canceled and no further payment required of the maker—precisely the course taken with accommodation notes. If the maker should pay, then the machinery should become its propertj'-, the payment being in effect the payment of its own debt upon a consideration then for the first time coming into existence—the acquisition of title to the machinery. Nothing could be clearer, and, it may be added, nothing fairer. This view gives effect exactly and fully to the intentions of the parties.
In this connection I will suggest that it is not strictly true that the use of the machinery can be regarded as a consideration for the whole note ; for the parties provided otherwise. They expressly provided that if the purchase failed the sums paid on the notes should be compensation for the use of the machinery. Nor is it true that the right or option to purchase was the consideration, for it is provided that if there was no purchase the note should not be paid but canceled. From these considerations it logically follows, and it seems to me conclusively so, that the note when given was without consideration except as payments might be made thereon, and that it should be regarded as an accommodation note unless paid by the maker.
It is practically said that the transaction was virtually a *483sale; that the real object of the parties was a sale; that the form which the transaction took was for the mere purpose of security; and that the provision for Crompton to resume possession was for his benefit, a privilege which he. might waive: and hence, by implication, that he had a right to treat the contract as absolute. My objection to that theory is, that the court is implying a contract when the parties have made an express one of an entirely different tenor. It is in effect a substitution by the court of a contract which the parties did not make, in place of one which they did make. I suppose the court exhausts its duty when it construes the contract made by the parties.
I think the real principle involved in this case was decided adversely to the claim of the appellee in Hine v. Roberts, 48 Conn., 267, and Loomis v. Bragg, 50 Conn., 228. In those cases, as in this, notes were given for the full value of the property, and the contract provided that upon their payment the title should vest in the maker; it also provided that upon default of full payment all payments made should be forfeited, and that the vendor might resume possession of the property. In those cases, as in this, there was a provision that if the maker paid the notes he should become the owner of the property, and by clear implication he was at liberty to decline payment, in which case the contract clearly defined the rights of the parties. In neither of the cases is there any intimation that the seller has any right to convert the transaction into an absolute sale against the will of the other party. In those cases, as in this, suits were brought on the notes after a default, and in neither of them was the suit sustained. In Hine v. Roberts it was distinctly held that the consideration of the note was not the use of the musical instrument with a right to purchase, but the purchase price upon an accomplished sale, and that, the sale failing, there was a failure of consideration. The court also declined to hold that it was a conditional sale by the vendor and an absolute purchase by the vendee; but on the contrary held that it was at the option of the vendee to complete the purchase or not. In all these respects that case was exactly *484like this, and should control it. Hine v. Roberts was followed in Loomis v. Bragg, and in addition thereto it was distinctly held that the plaintiff had no remedy except that provided by the contract.
An attempt is made to distinguish this case from those, in that, in each of them, the property had been returned to and accepted by the seller, while in this there has been an offer to return it and the seller declined to receive it. I cannot conceive how that fact can affect the principles involved. If the consideration failed when the purchase failed and the purchasers elected not to pay the note but to return the property, the refusal of the seller to receive the property could not revive the consideration. One party alone cannot revive a contract which has become inoperative by its terms, nor materially modify an existing contract. If it is true that the appellee had no remedy but that named in the contract, she could not by waiving that acquire another.
The only possible ground on which it can be said that the refusal to receive the property gave her a right of action on the note, is that she had a choice of one of two remedies, and that she might waive one and elect to pursue the other. But if she was confined by the contract to one remedy the doctrine of election has no application. Moreover, how is it possible that the act of one party, long after the making of the contract, and after the relation of each party to the subject matter has become permanently fixed, can change or affect the construction of the contract? Therefore it is of no legal significance that the appellee is not now in the possession of the looms; possession has been urged upon and refused by her. It is the law of the cited cases that it was the right of the Home Woolen Company at any time to tender the looms to her, and that such tender would constitute a perfect defence to a suit on the note. In short it is the law of those cases that persons of full capacity may make such lawful bargains as please themselves, and when made must abide bj7' them.
If we should enter the field of speculation as to what either party intended by the contract, we doubtless should *485reach the presumption that both accepted the interpretation which this court has put upon similar contracts as the measure of their rights and obligations under this.
It is of no legal significance that the Home Woolen Company has used the looms and has made no partial payments. The owner dictated the terms upon which he would part with the possession and give the right to use; he balanced the possibilities as to loss or gain, and he must be content with the measure of redress which he reserved for himself; the case must stand as if partial payments had been made and forfeited.
Crompton put the looms in possession of the Home Woolen Company, with permission to use; agreeing to sell them to it at a price then fixed, if it should make payment on a named day. The company delivered to him its note, payable on that day, for a sum equal to the price and interest; but, by agreement, the absolute title to the looms remained in him, and is there to this day, the company not having made payment.
Under this contract, therefore, interpreted by this court as have been similar contracts in the cases cited, the note in question, although in the usual unconditional form, was, by agreement, given and received solely as a memorandum of the sum which the company must pay if it should thereafter desire to acquire ownership, and to be, if used, an accommodation note. And it is the law of those cases that inasmuch as no property passed there could be no consideration for the note; and of course no enforcement of payment.