I agree that Reeves, the plaintiff in replevin, was not entitled to recover possession of the property when the action was brought because his right to possession, which existed under the terms of the contract, he had forfeited by his failure to pay the installments which accrued.
His right to possession depended upon his punctilious observance of the obligation to pay the monthly installments. His right to possession also had been surrendered by his failure to pay the indebtedness as the express terms of the contract required. He agreed to deliver possession on demand, but he also agreed that without any "previous notice or demand of performance" the owner of the machine may enter any premises where it may be found and take possession of it. The contract bound the plaintiff to a peaceful affirmative action of delivery on demand. It also secured to the owner the right to enter upon the premises without legal process, and without demand of performance, and take possession of the chattel. *Page 428
In any case, whether there was a peaceful affirmative action by the plaintiff in the delivery of the article to the owner, or whether the owner had peacefully, without trespass vi etarmis, taken possession without demand of performance, the plaintiff had agreed to surrender or forfeit his right to possession. With that gone he could not maintain replevin.
Such is my view of the decisions involving identical situations and the reason and law of the case.
I think therefore the judgment should be reversed.
BROWN, J., concurs.