
    Charles Cooper, Appellant, v. Henry B. Payne, Respondent.
    Third Department,
    March 7, 1906.
    Conditional sale—when goods are retaken by vendor the consideration of notes given for purchase price fails — vendor not entitled to apply proceeds of sale of goods on notes—retaking of property inconsistent with affirmance of sale.
    When, after a .sale and delivery of goods and a failure of the vendee to pay therefor within the time set, the parties have entered into a written agreement that the sale shall be conditional with the right in the vendor to retake posses-' sion on the failure of the vendee to pay notes given for a balance due, and the : vendor has asserted his title and retaken possession, he cannot thereafter recover the purchase price, and the consideration for the notes fails.
    
      Neither can. the vendor sell the goods reclaimed and apply the proceeds on said 'notes as the whole original indebtedness is wiped out. .
    Nor can the .vendor maintain in an action on such notes > that his negotiation of the notes and retaking of property showed. an election 'to affirm the sale. If so, the retaking of the property was conversion ,atid he cannot assert his own Wrong as a reason why -he should recqver oh the notes.
    Appeal by the plaintiff, Charles Cooper, from a judgment of the Supreme .Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 25 th day óf April, 1905, upon the decision, of the-court rendered, after a trial at the Montgomery' Trial Term, the jury having been discharged, 'dismissing the complaint. • .
    
      Andrew J. Nellis and J. S. Sitterly, for the appellant.
    
      Henry V. Borst, for the respondent.
   Cochrane, J.:

This action is on a promissory note given by -the' defendant to the plaintiff in part payment- of a machine manufactured, by the plaintiff for use in-the defendant’s factory. The machine was ordered by the defendant in December, 1902. Plaintiff accepted' the order, agreeing to deliver the machine within sixty days, and that the stipulated price "therefor should be paid within thirty days . a,fter delivery, ' • ,

The machine was sent to the defendant, and payment therefor not having been made within thirty days after it reached him the 'parties thereafter and'on May 26,. 1908, executed a contract in which it was recited that, the -defendant had -oh the- last-mentioned day purchased, the -machine conditionally" of. the plaintiff, and ‘that. said machine was then in defendant’s possession, and that defendant Would pay therefor a specified sum on demand, .and- by such -com tract it was expressly agreed “ that the title of the said property does not pass .by virtue of this conditional sale, but said property is to remain the property of the' said Charles Cooper,. his heirs' and assigns, and subject to his control until above-described payment, is made,”, and it, was also agreed that in case of failure by the defendant -to make payment for "the machine such failure .should w-ork a forfeiture of ail his -legal and equitable -claim to the .property, and that'the plaintiff should have the right to take possession thereof.

On December 1, 1903, no part of the purchase price of the said machine having been paid, the parties executed another written instrument providing for a series of four promissory notes to be given by the defendant to the plaintiff in payment of the machine, which instrument also provided that it should not in any way affect, any of the terms, covenants and conditions of the former written instrument of May 26, 1903.

At the time of executing the instrument of December 1, 1903, there was due to the plaintiff from the defendant a small amount for merchandise. This, however, was included in a cash payment of $100 made by the defendant at that time, and the balance of said payment of $100 was to apply on the purchase price of the machine. So that there was no consideration for the four promissory notes except the purchase price of the machine and interest.

The said four promissory notes matured at different times. Action was brought on the one first maturing, in which action plaintiff recovered a judgment which was affirmed on appeal to this court. (Cooper v. Payne, 103 App. Div. 118.) The note herein involved is the second one of the series. After the commencement of this action, and on June 28, 1904, plaintiff took the machine against the protest of the defendant, and on July 8, 1904, sold it after advertising the same and on notice to the defendant, and "claims to have applied the proceeds after deducting the expenses of the sale on the two notes of the series last maturing. Defendant, by supplemental answer which he was permitted by the court to serve, alleges as a defense to this action the taking of such property by the plaintiff, and the consequent failure of the considération of the promissory note on which the action is brought.

It was held by this court in the former action (103 App. Div. 118), in affirming the judgment in plaintiff’s favor on the first promissory note, that the contract of May 26, 1903, constituted a transaction of conditional sale, and that the plaintiff became a conditional vendor and the defendant a conditional vendee; that there was between the parties only an executory contract of sale, not to be completed until payment was fully made. It - was by reason of such determination that the plaintiff procured in that action an affirmance of the judgment in his favor, the defense being a breachr of an implied warranty-in the sale of the machine, and the court holding that the defendant not having returned or offered to return the machine after discovering its defects, such warranty did not survive the acceptance of the property, the contract of sale being executory only, although the rule would have- been different if the sale, had been executed. The facts in the two actions concerning the nature of this contract are the same and the determination in the former action, that the transaction was one of conditional sale forecloses further discussion of that question.

. The relation between the parties being that of conditional vendor .and.conditional vendee plaintiff cannot after asserting his title to the. property in question and taking the same from the defendant’s possession and selling the same recover the purchase price thereof. (Earle v. Robinson, 91 Hun, 363; affd., 157 N. Y. 683, on opinion below; White v. Gray's Sons, 96 App. Div. 154.) Plaintiff cannot disaffirm the contract of sale, take and keep his property and at the same time require the defendant to pay therefor. Neither could he sell the property and apply the proceeds of suclr sale on the promissory notes of the defendant. That was attempted in Earle v. Robinson (supra), but it was held that there was a failure of consideration and that the whole original indebtedness- was wiped out by the action of the creditor.

Plaintiff negotiated the promissory note which is the subject qf this action, and now claims that such act on his part, and the institution by him of actions on this and the former note, and his subsequent acts in reference to the sale of the' property, constituted an irrevocable election on his part to affirm the sale and made it impossible for him to take the property as owner. Such acts on the part of the jfiaintiff might be available to the defendant in an action involving title to the property; (Orcutt v. Rickenbrodt, 42 App. Div. 238.) But the plaintiff cannot avail himself- of his own acts or omissions performed' long after ■ the execution of the contract in question to impart a character to such contract which it did not otherwise possess. The status of the parties was fixed when the contract was made and plaintiff could not change it by his own subsequent acts or omissions. Moreover, this contention.of the plaintiff reacts against himself. For the only justification he had for taking this '.property .was this contract which has been held to be a conditional contract and which- gave him the right only to take the property as owner, and if ha had irrevocably affirmed the sale to defendant, as he claims, so that he could not take the property under such contract, as owner, then he had no other right whatever to take it and his action in taking it was a conversion thereof. But he cannot urge his own wrongful act in converting the property as a reason why he should maintain this action.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, .with costs.  