
    The National Cash Register Co., Plaintiff, v. George D. Ferguson, Defendant.
    (Supreme Court, Westchester Trial Term,
    November, 1898.)
    1. Conditional sale — Construction of contract as to default in payment — Replevin.
    In a contract for the conditional sale of a cash register providing that the vendees shall pay “ Three hundred and twenty-five dollars ($325.00), in U. S. Gold Coin or its equivalent; viz., Twenty-five dollars cash on delivery, and notes, $25 each, for the balance, payable monthly ”, the words “ or its equivalent ” refer to “ U. S. Gold Coin ” and not to the time of payment; and hence vendees, who have paid twenty-five dollars cash on delivery and who have given the vendo» notes for the balance, but who have not paid these notes (which the vendor offered to return) are to be deemed in default, and the vendor may replevy the cash register from a transferee of the vendee under a clause of the contract providing “ that the title of said cash register shall not pass until the same is paid for in full ”.
    3. Same — Election of remedies.
    An action, brought by the vendor to recover a balance of the purchase price, considered by the court not to amount to an election, the vendor not being advised as to all the facts.
    The action is replevin for a cash register, the subject of a conditional-sales’ contract, and at the close of the trial, plaintiff and defendant each moved for a direction of a verdict, both motions being held for consideration.
    
      Perkins & Butler, for plaintiff.
    Roger M. Sherman, for defendant.
   Maddox, J.

' By the conditional contract of sale the vendee agreed to pay “ Three hundred and twenty-five dollars ($325.00), in U. S. Gold Coin or its equivalent; viz., Twenty-five dollars cash on delivery, and notes, $25 each, for the balance, payable monthly.” The words “ or its equivalent ” refer not to the time of payment, but to the value of that which may be tendered as payment in lieu of “ U. S. Gold Coin.” They mean that the substitute therefor shall have a commercial value as good as U. S. Gold Coin ”, thus being “ its equivalent ”.

The time of payment, if deferred, is then provided for (by that which follows, viz., Twenty-five dollars cash on delivery, and notes, $25 each, for the balance, payable monthly ” and the deferred payments are to be made “ in U. S. Gold Coin or its equivalent ”.

A written promise to pay cannot be said to be the equivalent to “ U. S. Gold Coin ”, and, consequently, it follows that defendant’s contention, that payment, under the contract, was completed by the cash payment and the delivery of the notes, cannot be sustained.

The default in payment and demand for possession are alleged by plaintiff, are not denied, and must be taken as admitted facts. Title was not to pass “ until the same is paid for in full ”, and a • careful reading of the contract leads to but one conclusion, that the words' “ the same ” refer to and mean the cash register.

Plaintiff’s right to maintain this action does not, I think, depend upon a return or a tender of the unpaid notes at the time of the demand. The right of action, under the contract, accrued immediately upon the default in payment, whereupon plaintiff had the right to repossess itself of the property in controversy. But if there be any doubt as to the last proposition, which I do not here concede, it was removed by the offer by plaintiff at the trial to surrender the unpaid notes, all of which were then past due.

The contract was not with the corporation George D. Ferguson & Co., but was with a copartnership trading under the firm name of George D. Ferguson & Co., and of which firm defendant is the surviving partner. Bearing in mind “ that the title of said cash register shall not pass until the same is paid for in full ”, and that such payment has not been made, the attempted sale by the vendee to the corporation gave it no title whatsoever, and it does not appear that plaintiff in any wise assented thereto.

Defendant’s contention that the bringing of suit, prior to the commencement of this action, by plaintiff against the corporation, to recover the balance of the contract price of said cash register, was an election, inconsistent with the theory upon which plaintiff must prevail, if at all, in this action, cannot be upheld.

From a reading of the two complaints it is most apparent that there was a want of knowledge of all the facts on plaintiff’s part, since, in the one against the corporation (defendant’s Exhibit A), it is sought to charge it as the vendee named in the conditional-sales’ contract. This, clearly, was a mistake, due, possibly, to the similarity of names of the vendee firm and the corporation. There is no evidence to justify the conclusion that plaintiff has waived the forfeiture provisions of said contract or its right to maintain this action.

Plaintiff’s motion to direct a verdict in its favor should be granted and defendant’s motion denied, with an exception to defendant.

Judgment is, therefore, directed for plaintiff, with costs.

Judgment for plaintiff, with costs.  