Lord v. Smith

YORK, J.

This action was commenced for the recovery of $330 alleged to be due from the defendants to plaintiff (assignee of Remington Cash Register Co.) under a contract of conditional sale of a Remington cash register. The original price was $375, $45 was paid and the balance was payable at the rate of $20 per month. The contract provided that in case of default “the purchase price of said register, less any actual payments thereon, shall at once become due and payable; ...” The contract further provided that the Remington Cash Register Company, or its agent, may, if it so elect, “take possession of and remove said register without legal process and retain as rental for the use of said register while in the possession of the undersigned all payments theretofore made.” Said contract also provided that “the register shall remain your property until the price, or any judgment for the same is paid in full.”

[748]

It appears from the record that the cash register in question was delivered to the defendants, who were doing business under the firm name and style of Windsor Square Grocery Company, and that thereafter upon a sale of the business of the Windsor Square Grocery Company from the defendants to other parties, the Remington Cash Register Company was notified to remove the machine by the purchasers of the business, and they were also notified that if they did not remove the cash register from the premises that the same would be placed in the alley. Thereupon, the Remington Cash Register Company took possession of the cash register and this action was brought in the name of W. R. Lord, to whom the Remington Cash Register Company had sold and assigned its interest in and to the contract and the payments due thereunder.

Said contract provided that in case suit should be brought for the collection of the purchase price or the amount due thereon that the defendants would pay a reasonable attorney’s fee to be fixed by the court. The only thing that the Remington Cash Register Company could do on such notification that the cash register would be moved into the alley was either to come and take possession of the same to protect it, or to sue on the contract for the money to be paid thereunder and abandon any security that they might obtain by reason of holding possession of the cash register. This latter method they did not have to adopt. The taking under such circumstances is not a rescission of the sale and cannot act as a bar to the recovery of the purchase price.