*3Reversed April 13, 1915.
On the Merits.
(147 Pac. 755.)
Reversed. For appellant there was a brief and an oral argument by Mr. H. E. Slattery. For respondent there was a brief over the names of Mr. J. F. Brumbaugh, Mr. Fred E. Smith and Mr. G. N. Parmenter, with an oral argument by Mr. Brumbaugh. Mr. Justice Burnettdelivered the opinion of the court.
2. A contract whereby the possession of personal property is delivered to a buyer, who agrees to pay a price for the same, with the condition that the title remain in the seller until the price is paid, constitutes a conditional sale of the personalty: Singer Mfg. Co. v. Graham, 8 Or. 17 (34 Am. Rep. 572); Rosendorf v. Baker, 8 Or. 240; Schneider v. Lee, 33 Or. 578 (17 Pac. 269); Herring-Marvin Co. v. Smith, 43 Or. 315 (72 Pac. 704, 73 Pac. 340); McDaniel v. Chiaramonte, 61 Or. 403 (122 Pac. 33). In the case last cited, concerning a breach of a contract by the purchaser, the opinion quotes from 1 Mechem on Sales, Section 615, giving to the seller four remedies, namely:
“(1) He may treat the contract as rescinded upon default of the buyer and recover the goods. In that event, that is his only remedy. (2) He may treat the contract as in force, but broken by the buyer, and if by the transaction the buyer contracts to pay, the seller may retake the goods and recover damages for the breach. (3) He may, if the buyer agreed to pay the price, waive the return of the goods and sue for the price. (4) He may, if the contract permits it, without rescinding, take possession of the goods and hold them as security for the fulfillment of the contract.”
3. It appears without dispute in the testimony that the judgment recovered by the plaintiff here against his grantee was for the purchase price of a portion of the chattels which the latter had sold and had not paid to the plaintiff. As stated in Thienes v. Francis, 69 Or. 171 (134 Pac. 1195, 138 Pac. 845), in construing this very contract, the sale by plaintiff’s grantee before title passed to him constituted a breach of the agreement. The plaintiff then had a single cause of action *6arising out of a contract singlé in its terms for a single price, and, if lie would proceed, lie was put to his election which of the remedies offered him by law he should pursue. An action for the purchase price of the property is an action on the contract, and necessarily proceeds upon the theory that the title has been waived by the seller and vested in the buyer. Indeed, the weight of authority is to the effect that the commencement of any litigation which depends upon the hypothesis that the title has passed to the purchaser on waiver by the seller constitutes an election which the plaintiff cannot afterward revoke. In Hickman v. Richburg, 122 Ala. 638 (26 South. 136), the plaintiff had contracted to sell lumber to the defendant, reserving title until the price was paid. It was held that the unsuccessful attempt of the plaintiff to establish a lien upon the structure in which the lumber was used constituted a waiver of the reservation of title, and that it was an election which barred the attempt to recover the identical property or damages for its conversion. In Butler v. Dodson, 78 Ark. 569 (94 S. W. 703), it was decided that bringing an action for the selling price is a waiver of the reservation of title. To the same effect are Smith v. Barber, 153 Ind. 322 (53 N. E. 1014); Alden v. Dyer, 92 Minn. 134 (99 N. W. 784); Orcutt v. Rickenbrodt, 42 App. Div. 238 (59 N. Y. Supp. 1008); Fredrickson v. Schmittroth, 77 Neb. 724 (112 N. W. 564); Mathews Piano Co. v. Markle, 86 Neb. 123 (124 N. W. 1129); Sioux Falls Adjustment Co. v. Aikens, 32 S. D. 154 (142 N. W. 651); North Robinson Dean Co. v. Strong, 25 Idaho, 721 (139 Pac. 847) ; Chase v. Kelly, 125 Minn. 317 (146 N. W. 1113); Purdy v. Dunn Machinery Co. (Ga.), 82 S. E. 888; Frisch v. Wells, 200 Mass. 429 (86 N. E. 775, 23 L. R. A. (N. S.) 144). In commencing his action for the purchase *7price or part of the property, the plaintiff adopted the alternátive of suing for the price instead of resuming the custody of the property by replevin or recovering damages in trover for its conversion. The contract being single, there was a breach of the whole agreement giving rise to but one cause of action for the price. Having proceeded on the plan of recovering the sum stipulated to be paid under the contract for the sale of the property, the judgment rendered in that action is conclusive upon both parties, not only for what was actually litigated, but as to every other matter which the parties might have litigated and settled as incident to and necessarily connected with the' subject matter of the litigation: White v. Ladd, 41 Or. 324 (68 Pac. 739, 93 Am. St. Rep. 732); Colgan v. Farmers & Mechanics’ Bank, 69 Or. 357 (138 Pac. 1070). Having a grievance against his adversary, a party cannot submit him to the slow torture of multiplied litigation, when the whole matter can be settled in one action or suit. In other words, possessing but a single cause of action, he may not split it up to be used as material for several actions: Indiana B. & W. Ry. v. Koons, 105 Ind. 507 (5 N. E. 549); Wilson v. Buell, 117 Ind. 315 (20 N. E. 231); Willoughby v. Atkinson Furniture Co., 96 Me. 372 (52 Atl. 756); Mallory v. Dawson etc. Co., 32 Tex. Civ. App. 294 (74 S. W. 593).
In short, the prosecution of the action for the purchase price of part of the property was an irrevocable election to proceed upon the postulate that the title to the property had passed to the purchaser named in the contract. Having entered upon that course, the plaintiff was bound to pursue it consistently to the end. He cannot shift his position and afterward undertake to recover in specie the property which was the subject of the contract. It having been possible to sue for *8the whole purchase price, it was his duty to have done so, if he chose to take that remedy at all, and he must be held to have accepted the results of that judgment as a determination of all his rights under the contract. The facts recited appeared without dispute from the pleadings and evidence offered at the trial, and it was the duty of the court to sustain the motion made by the defendant for a verdict in his favor at the close of all the evidence, for, under the authorities cited, the action of the plaintiff in suing for the price, even of a part of the property, was a waiver of the title, which having passed from him, he cannot recover possession of the chattels involved. Many other errors are assigned which, in the view we have taken of the case, are unnecessary to be considered.
The judgment is reversed. Reversed.
Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur.