Arnois v. Bell

LANGDON, P. J.

This is an appeal by the defendant from a judgment against him in an action to recover the unpaid balance upon the purchase price of a certain X-ray dental unit sold to the defendant.

The transaction between the parties was evidenced by a writing, describing the article sold, reciting that the purchase price was to be $845, payable in monthly installments of $50 each, to be evidenced by promissory notes. The following clause then appears in the contract: “It is further agreed and understood that the above described goods are to remain the property of Charles Arnois until payment has been made in full.”

The notes provided for in the contract were executed and delivered by the defendant to the plaintiff. Several of these notes had been paid and all the others were past due and payable at the time plaintiff brought the action in which he sought to recover upon all the unpaid notes. The trial court found that the “plaintiff had done and performed all the acts which by the terms of any agreement between the plaintiff and the defendant the said plaintiff agreed to do or perform.; and that there now remains no act to be done or

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performed by the plaintiff which he agreed either in writing or orally or at all to do or perform.”

The only point made upon the appeal is that the plaintiff should not have recovered because he failed to allege and prove that he had tendered to the defendant a bill of sale of the property in connection with his demand for payment of the balance due; that in failing to make such tender, plaintiff failed to perform an act required of him by the terms of the contract. The findings recite that plaintiff did not make such tender and that defendant did not waive the same. The question thus presented is: Whether or not under the clause of the contract above quoted, plaintiff was bound to offer a bill of Sale as a condition precedent to demanding payment of the balance of the purchase price, before his cause of action was perfected.

The cases cited by appellant deal with the title to real property, and in such cases the reason for the offer of a deed is obvious, that being the only method by which title can be passed. But there is no provision of law that requires the title of personal property such as is involved here to be transferred by formal bill of sale. The contract provided that the title to the property remain in the vendor