The Thornburg Sales Co. sold to John Shockey certain chattel property, taking certain notes from Shockey and also a chattel mortgage on said property which mortgage contained a clause by which the Sales Co. was entitled to immediate possession upon default in payment.
Shockey ,not making payments as agreed, the Sales Co. brought this action in the Wood Common Pleas to replevy the property. The Sales Co. offered in evidence the contract of sale, the chattel mortgage and the unpaid notes, then rested.
The purchaser contended that this agreement was a conditional sale and that part of the purchase price should have been tendered back before this action could be maintained. The case was tried to the jury, which found for the Sales Co. Shockey prosecuted error, and the Court of Appeals held:
1. Although a mortgage and notes are given on the purchase of an article, if the transaction *109is in fact a conditional sale, it will be treated as such, and no action can be maintained to recover possession of such article until there has been a tender back of part of purchase price as required by the provisions of 8570 GC.Attorneys — Benjamin F. James for Shockey; E. H. Fried for Company; both of Bowling Green.
2. In the case at bar there is not even a scintilla of evidence tending to show that the transaction between the parties was a conditional sale.
3. In view of the fact that this was not a-conditional sale, the company was entitled to take possession of the property and default of the mortgage.
Judgment affirmed.