
    The M. Steinert & Sons Company vs. Henry E. Reed.
    Washington.
    Opinion December 19, 1919.
    
      Rule as to mortgagee oj personal property waiving his mortgage or lien on property in cases where action is brought by mortgagee on note secured. Rule where the mortgaged property is attached in the action on the note.
    
    Replevin by the holder of a Holmes note to recover a piano described therein as the chattel securing the- debt. The defense was that the plai ntiff had brought suit on the note, recovered judgment, and thereby waived his lien.
    
      Held:
    
    That no attachment on the piano having been made in the suit there was no waiver of lien.
    Action of replevin. Reported to Law Court upon agreed statement of facts. Judgment in accordance with opinion.
    Case stated in opinion.
    
      Howard M. Cook, and Harold H. Murchie, for plaintiff.
    
      R. J. McGarrigle, for defendant.
    Sitting: Cornish, C. J., Hanson, Philbrook, Dunn, Morrill, Deasy, JJ.
   Deasy, J.

The case comes to this court on agreed statement.

Defendant received a piano from the plaintiff and gave for it a note payable in installments.

The note contained an agreement that it was given for rental of the piano which “is to remain the property of the said The M. Steinert & Sons Co. until this note is paid in full at which time the title to said instrument is to vest in the maker of this note.”

The plaintiff brought suit on note, recovered judgment and' execution, but not satisfaction. Then the plaintiff replevied the piano.

The defendant claims that by its unsuccessful attempt to collect the note of the maker the plaintiff waived its right to or lien on the property. He sets up no other defense.

While there is some conflict of authority in other jurisdictions it is settled law in this State that “Practically x x the right of the vendor is that and only that of a mortgagee of personal property under a chattel mortgage given as security for a debt. He can attempt the collection of his debt by suit and also by enforcing his mortgage security concurrently or successively.” Westinghouse v. R. R. Co. 106 Maine, 349; Arthur E. Guth Co. v. Adams, 114 Maine, 390.

An attachment of mortgaged chattels in a suit to enforce the mortgage debt is a waiver of the lien. Libby v. Cushman, 29 Maine, 429; Whitney v. Farrar, 51 Maine, 418.

But in this case no attachment appears to have been made.

Judgment for plaintiff.

By stipulation damages to be assessed at one dollar.  