exceeds the unpaid price. 15 Again, it has been held that though a counterclaim could be set up if the amount is sufficient to satisfy the amount of the unpaid price, as this would defeat the seller's right to possession, still, where the amount of the counterclaim does not equal the amount of the unpaid price, it cannot be set up, as even if allowed it would not defeat the seller's right to possession.16 It has been held that a court of equity will not enjoin the seller from prosecuting an action of detinue to recover from the buyer a chattel, sold and delivered on condition that the title thereto was to remain in the seller until it was fully paid for, on the ground that he has broken his contract, thereby entitling the buyer to a right of action for damages, though such breach of contract is no defense to the action at law.17

775. Waiver of Right to Retake Possession Generally.-The seller may, in case of a sale with reservation of title until the price is paid, have inconsistent remedies to enforce his rights under the contract, the one based on the passing of the title to the buyer, the other on the title remaining in him, and his resort to the former remedy will ordinarily preclude his subsequent assertion of title under the reservation. or retention of title.18 To constitute an election of remedies preventing the seller from asserting his title the remedy resorted to must have been one which could have been made available, and therefore if the remedy resorted to was one which must be wholly abortive although based on the theory that the title vested in the buyer, it will not preclude the seller from asserting his title under the conditional sale, as the fact that a party, through mistake, attempts to exercise a right to which he is not entitled docs not prevent his afterwards exercising one which he had and still has unless barred by the previous attempt.19

776. Effect of Action for Price Generally.-The right of the seller to retake possession and his right to enforce the liability of the buyer

15. Dearing Water, etc., Co. v. Warner Elevator Mfg. Co., 79 W. Thompson, 156 Mich. 365, 120 N. W. Va. 216, 90 S. E. 674, L.R.A.1917C 801, 24 L.R.A. (N.S.) 748; Charles- 75. ton Hardware Co. v. Warner Elevator Mfg. Co., 79 W. Va. 216, 90 S. E. 674, L.R.A.1917C 75. See also Singer Mfg. Co. v. Smith, 40 S. C. 529, 19 S. E. 132, 42 A. S. R. 897.

Notes: 24 L.R.A. (N.S.) 748; Ann. Cas. 1918B 914.

As to whether a counterclaim may be set up in an action of detinue or replevin, see SET-OFF AND COUNTERCLAIM, par. 32.

18. Van Winkle v. Crowell, 146 U. S. 42, 13 S. Ct. 18, 36 U. S. (L. ed.) 880; Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187; Winton Motor Carriage Co. v. Broadway Automobile Co., 65 Wash. 650, 118 Pac. 817, 37 L.R.A. (N.S.) 71. Note: Ann. Cas. 1917D 464.

19. Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 U. S. (L. ed.) 828.

Note: 19 L.R.A. (N.S.) 141.

16. Zimmerman v. Sunset Lumber Co., 57 Ore. 309, 111 Pac. 690, Ann. As to mistake as affecting election Cas. 1913A 103, 32 L.R.A. (N.S.) 123. of remedies generally, see ELECTION 17. Charleston Hardware Co. V. OF REMEDIES, vol. 9, pp. 962–963.

for the price under his absolute promise to pay the same are inconsistent and not cumulative remedies, and ordinarily the election of the seller to resort to the latter is held a waiver of any right thereafter to retake possession, as the election to resort to such remedy transfers and confirms the title in the buyer; 20 and this has been held true though the contract provided that the title should remain in the seller until the price was fully paid and a bill of sale given.1 So where, on the insolvency of the buyer, the seller proved his claim for the unpaid part of the price, and recovered a dividend from the estate, it has been held that he could not thereafter assert any right to retake possession, and the same has been held true where the seller proved his claim for the price, as a general claim, against the estate of the buyer in bankruptcy. Likewise, where the seller brought an action for the price, arresting and holding the body of the buyer until he released himself by taking the statutory oath, it has been held that he was precluded from thereafter maintaining replevin for the property though he failed to enter the writ in the first action. Though the action was for only a part of the price due at the time of the action, this will not prevent it from operating as a vesting of the title in the buyer and preclude the seller from retaking possession on the default of the buyer in paying later instalments, as there cannot be any dif ference in principle whether the action brought upon the contract is for the total balance of the price, or for a portion thereof. In either case the action is based upon the vesting of title in the buyer, and this is what constitutes the election.5 And it is held, where the contract

20. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187; American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 49 So. 942, 16 Ann. Cas. 1054; Peasley v. Noble, 17 Idaho 686, 107 Pac. 402, 134 A. S. R. 270, 27 L.R.A.(N.S.) 216; Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144; Chase v. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A. 1916A 912; Francis v. Bohart, 76 Ore. 1, 143 Pac. 920; 147 Pac. 755, L.R.A.1916A 922; Winton Motor Carriage Co. v. Broadway Automobile Co., 65 Wash. 650, 118 Pac. 817, 37 L.R.A.(N.S.) 71; Eilers Music House v. Douglass, 90 Wash. 683, 156 Pac. 937, L.R.A.1916E 613; Norman v. Meeker, 91 Wash. 534, 158 Pac. 78, Ann. Cas. 1917D 462.

1916A 925; 1 Ann. Cas. 268; 16 Ann. Cas. 1057; Ann. Cas. 1917D 465.

The corollary of this rule is also true and the retaking of possession is generally held a waiver of the seller's right thereafter to recover the unpaid part of the price. See infra, par. 785.

1. Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144. See also Eilers Music House v. Douglass, 90 Wash. 683, 156 Pac. 937, L.R.A.1916E 613.

2. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187.

3. American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054.

4. Frisch v. Wells, 200 Mass. 429, 86 N. E. 775, 23 L.R.A. (N.S.) 144.

5. Eilers Music House v. Douglass, Notes: 50 A. S. R. 37; 32 L.R.A. 90 Wash. 683, 156 Pac. 937, L.R.A. 463; 23 L.R.A. (N.S.) 144; L.R.A. 1916E 613.

of sale is entire, that the institution of an action for the price of a part of the articles will confirm the title in the buyer to all of the articles embraced in the contract. On the other hand the broad view is taken, in some cases, that merely bringing an action by the seller for the price and prosecuting it to judgment do not waive the right to retake the property. The reason given for this is that the seller has the right to receive the price, and the judgment merely preserves the obligation of the buyer's promise to make payment by putting it in another form, and there is no inconsistency between an attempt to get the money and a reservation of title if the attempt is not successful; and that in asserting title the seller does not treat the contract as void in its inception, but it is treated as subsisting, and enforced according to its terms. It has been held that where the seller has taken possession and afterward brings suit on the purchase money notes this confirms the title in the buyer at his election and the seller's continued possession becomes wrongful; still the bringing of such action does not relate back so as to render the seller's possession prior thereto wrongful."

777. Special Provisions as Affecting Rule.-The parties may expressly provide that the institution of an action by the seller for the price shall not affect his right to retake possession, and effect will be given thereto. 10 And it is held that where the contract provides that the title to the property sold is to remain in the seller until the purchase price, with interest thereon and any judgment rendered therefor, is paid in full, the seller, on default of the buyer, may prosecute to judgment an action for the price, and title will not pass until such judgment is paid, and therefore until then the seller may retake possession.11 So, under a contract providing that the buyer shall give notes for the price, the title to remain in the seller until a mortgage is given on the property sold to secure such notes or the price is paid, it has been held that the seller may, upon the failure of the buyer to give such mortgage, recover judgment on the notes and subsequently recover the goods by replevin.12 Where, under the terms of the con

6. Francis v. Bohart, 76 Ore. 1, 143 Pac. 920, 147 Pac. 755, L.R.A.1916A

922.

7. Ratchford V. Cayuga County Cold Storage, etc., Co., 217 N. Y. 565, 112 N. E. 447, L.R.A.1916E 615.

Notes: 23 L.R.A. (N.S.) 145; L.R.A. 1916A 925; Ann. Cas. 1917D 466.

8. Ratchford V. Cayuga County Cold Storage, etc., Co., 217 N. Y. 565, 112 N. E. 447, L.R.A.1916E 615 (the court, however, in this case, which involved a recovery of judgment for the overdue instalments only, leaves

undecided the question as to the effect of a recovery of judgment, by way of anticipation for the entire purchase price, under an election to declare due future instalments).

9. Chase v. Kelly, 125 Minn. 317, 146 N. W. 1113, L.R.A.1916A 912. 10. Note: L.R.A.1916A 925.

11. Notes: 23 L.R.A. (N.S.) 145; L.R.A.1916A 925.

12. Campbell Printing Press, etc., Co. v. Rockaway Pub. Co., 56 N. J. L. 676, 29 Atl. 681, 44 A. S. R. 410. Note: 1 Ann. Cas. 268.

tract, the seller, on the nonpayment of a note given for the purchase price, was entitled to resume possession of the property sold and to consider all payments made as for the use of the property while in the hands of the buyer and it was further agreed that on the retaking of possession the note should be surrendered and canceled, it was held that the seller could not, after maintaining a proceeding to collect the note and receiving a dividend by virtue of such proceeding, sustain an action of replevin to recover the property, as the dividends so received were not to be considered as on the same basis as voluntary payments.13

778. Attempt to Enforce Mechanic's Lien.-The better view seems to be that a mechanic's lien may be enforced for the price of materials, though they are furnished under a contract which provides that the title thereto shall remain in the seller until paid for; 14 and, on the theory that the right to such a lien implies that the title has passed, it has been held that the institution of proceedings to enforce the lien is inconsistent with the title remaining in the seller, and his resort thereto will preclude his subsequent assertion of title under the reservation in the contract of sale.15 On the other hand it has been held that the seller does not, by instituting wholly abortive proceedings to enforce a materialman's lien, based upon the mistaken theory that the title has passed to the buyer, make an election which prevents him, after the dismissal of such proceedings, from bringing suit in replevin based on the theory that the title still remains in him.16 And the view has been taken that, though a claim for a mechanic's lien may be enforced for the price of materials or the like sold under a contract reserving title in the seller until the price is paid, the resort to such proceedings is not inconsistent with the rights of the seller under his reservation of title and does not preclude him, upon the dismissal of the mechanic's lien proceeding without having gained any benefit therefrom, from asserting his right as seller to retake possession, as the assertion of the right of the lien does not necessarily imply that the buyer has acquired absolute title to the materials constituting the basis of the lien, but only that he has acquired the title necessary to its creation which may be such an interest or title as the buyer under a conditional sale acquires.17

13. Crompton v. Beach, 62 Conn. 25, 25 Atl. 446, 36 A. S. R. 323, 18 L.R.A. 187.

S. Ct. 18, 36 U. S. (L. ed.) 880 (following an Alabama case). See also Bailey v. Baker Ice Mach. Co., 239 U. S. 268, 36 S. Ct. 50, 60 U. S. (L. ed.) 275.

Notes: 23 L.R.A. (N.S.) 145, 146; Ann. Cas. 1917D 466.

14. Warner Elevator Mfg. Co. v. Capitol Invest., etc., Ass'n, 127 Mich. 323, 86 N. W. 828, 89 A. S. R. 473. 15. Ratchford v. Cayuga County Cold Storage, etc., Co., 217 N. Y. 565, 112 N. E. 447, L.R.A.1916E 615 (referring to an earlier case); Van 828. Winkle v. Cromwell, 146 U. S. 42, 13

16. Bierce v. Hutchins, 205 U. S. 340, 27 S. Ct. 524, 51 U. S. (L. ed.)

17. Warner Elevator Mfg. Co. v.

2

779. Exercise of Right to Retake Possession Generally.-On the default of the buyer the seller may, ordinarily, exercise his right to retake possession without resort to the courts.18 And it is said that the seller has an implied irrevocable license to enter the buyer's premises and remove the goods on breach of the contract; 19 and, a fortiori, if the right so to re-enter is expressly reserved to the seller it cannot be revoked by the buyer and, after an attempted revocation, it may be exercised without liability to the buyer for trespass.20 It is generally held that, if the seller's right to enter and remove the subject matter of the sale is resisted, he may use such force as is nécessary, without being liable civilly to the buyer; and, a fortiori, the fact that the seller by a falsehood obtains entrance to the premises of the buyer, the right to enter and remove the property being expressly reserved, will not render his entrance a trespass. Where the seller or his servant has entered on the premises of the buyer and, with her consent, taken possession of the chattel, he is not guilty of assault in removing the buyer from the property upon which she has sat down in an effort to regain the possession and prevent the removal, if no more force is used than is necessary to effect that result. On the other hand, it has been held that the seller has no right to enter into the buyer's dwelling without his consent for the purpose of retaking possession of the property unless the right so to enter is expressly reserved. And in some cases the right of the seller to use force in retaking possession is denied, though the right to enter and take the goods is reserved in the contract, and he is required to resort to the courts when the buyer refuses to consent to his entry and the exercise of his right to repossess himself of the chattels. The seller may render himself liable in tort if he exercises his right to retake possession in an unreasonable manner;

Capitol Invest., etc., Ass'n; 127 Mich. 323, 86 N. W. 828, 89 A. S. R. 473.

Notes: 52 L.R.A. (N.S.) 564; L.R. A. 1916A 925.

18. W. T. Walker Furniture Co. v. Dyson, 32 App. Cas. (D. C.) 90, 19 L.R.A. (N.S.) 606.

Notes: 133 A. S. R. 567; 19 L.R.A. (N.S.) 606.

19. Note: 89 Am. Dec. 128.

20. W. T. Walker Furniture Co. v. Dyson, 32 App. Cas. (D. C.) 90, 19 L.R.A. (N.S.) 606; Lambert v. Robinson, 162 Mass. 34, 37 N. E. 753, 44 A. S. R. 326. See also Smith v. Hale, 158 Mass. 178, 33 N. E. 493, 35 A. S. R. 485; North v. Williams, 120 Pa. St. 109, 13 Atl. 723, 6 A. S. R. 695.

thus he is civilly liable if he uses

1. W. T. Walker Furniture Co. v. Dyson, 32 App. Cas. (D. C.) 90; 19 L.R.A. (N.S.) 606; Lambert v. Robinson, 162 Mass. 34, 37 N. E. 753, 44 A. S. R. 326.

Notes: 19 L.R.A. (N.S.) 606; L.R.A. 1015F 673.

2. North v. Williams, 120 Pa. St. 109, 13 Atl. 723, 6 A. S. R. 695. As to what constitutes a trespass generally, see TRESPASS.

3. Biggo v. Seufferlein, 164 Ia. 241, 145 N. W. 507, L.R.A.1915F 673. 4. Notes: 89 Am. Dec. 128; 133 A. S. R. 567.

5. Notes: 19 L.R.A. (N.S.) 607; L.R.A.1915F 675.

6. Flaherty v. Ginsberg, 135 Ia.