
    The Equitable General Providing Co., Respondent, v. Charles Edward Potter, Appellant.
    (Supreme Court, Appellate Term,
    December, 1897.)
    Conditional sale — Kent for use — Effect óf retaking by vendor.
    Proof, made in an action brought for a balance of rent alleged to be due by the vendee upon a conditional sale of two bicycles, that the duplicate agreement, executed in each case, states that the vendee had rented the bicycles from the vendor for the term of ten months, “ for the use and depreciation of which ” the vendee agreed to pay $105, within ten months at periods fixed; that, upon a failure to pay, the vendee would return the bicycles of, In the alternative, that the vendor might lawfully take possession of them and that, upon full payment, the vendor would execute to the vended a bill of sale, accompanied by proof ■ that the Vendee had the use of the bicycles for sixteen months, when the vendor, before action brought, retook and accepted them and that it now holds them subject to the statutory, right of the vendee to redeem . from a conditional sale, entitles the vendor to maintain the action.
    Appeal by defendant from judgment of the First District Court.
    J. M. Fisk, for appellant.
    L. L. G. Benedict, for respondent.
   McAdam, J.

The two bicycles which, are the subject of this controversy were received from. the plaintiff under agreements dated May 6, 1896.

There were two separate writings ás to each bicycle; one signed by the plaintiff, the other by the defendant. In each of the two signed by the defendant and delivered to the plaintiff, the defendant certifies that he has rented from the plaintiff one Victor bicycle, to hold for the term of ten months, for the use and depreciation of ■ which he agrees to pay $105, as follows.: $5 cash, and $10 on the sixth day of each month. Each of such agreements then provides that in case of failure to pay as above specified, the defendant will, at the option of and upon request from the plaintiff, return the property to it; and upon failure so to do, the plaintiff is authorized to take possession of the bicycle, without being liable to any damages arising from the taking. In each of the two writings signed hy the plaintiff and delivered to the defendant, it agrees that upon receiving the full sum of $105 mentioned, it will execute and deliver to him a bill of sale of the property.

The writing signed by the plaintiff and the one signed by the defendant having been made contemporaneously, and relating to the same subject-matter, are to be read as one instrument. Rogers v. Smith, 47 N. Y. 324, 327; Mott v. Richtmyer, 57 id. 49, 64; Marsh v. Dodge, 66 id. 533, 537. The parties concede that such is the proper rule, and that the agreement was one of conditional sale,, the title of the defendant to become complete on payment of the $105 at the time and in the manner specified.

The defendant did riot pay the full sum of $105 on each contract as promised, but only $65, leaving $40 unpaid on each bicycle. The last installment he paid was on November 7, 1896. The bicycles were delivered up by the defendant August 15, 1897, on an order from the plaintiff, and it has since had possession of them. It will be seen that the defendant had the use of the property for a little over fifteen months.

The action was. brought September 10, 1897, to recover $80, the unpaid rent. The defense is that the plaintiff, by accepting a return of the bicycles before suit is brought, disabled itself from claiming the balance due, and we have been referred to Earle v. Robinson, 91 Hun, 363; 36 N. Y. Supp. 178, as an authority sustaining this contention.

In that case, • the vendors in a conditional sale took possession of' their property because of a default in payment of certain installments of the purchase price due by the vendee, and thereafter sold the property to other parties, ■ The court held that, in consequence-of such taking and subsequent. sale, the consideration for notes given on the purchase by the original vendee failed; that as the vendors retained title, they could not have an equitable lien on their own property, and the taking by them could not be justified on any ground other than that of absolute ownership. That case is distinguishable from this in that the entire rent recovered herein was actually earned and payable before the bicycles were returned’ or suit brought. The plaintiff, when it accepted a return of the property, had an existing right of action against the defendant fertile sum sued for, which the return of the property did not discharge, as the defendant was to pay the amount unconditionally, whether he took a bill of sale or not. The bicycles were to remain the property of the plaintiff until paid for, and their possession was a mere security for such payment, not inconsistent with the right to enforce the promise to pay according to the agreement. Brewer v. Ford, 54 Hun, 116; 59 id. 17; affirmed, 126 N. Y. 643.

In Earle v. Robinson, supra, the vendors, by making an absolute sale to a third person, put it out of their power to complete their contract with the conditional' sale vendee. In this instance, the property is held by the plaintiff, according to the evidence of its manager, subject to the defendant’s order on payment of the balance due. The plaintiff evidently recognizes the defendant’s ■ right to redeem provided by the statute relating to conditional sales. Laws 1,895, chap. 925.

The defendant agreed to pay a stipulated sum for the use' and depreciation ” of the property. He has enjoyed the consideration to the.full extent of the contract, and he ought to pay according to its provisions. 1 Modus et conventio vincunt legem.

The judgment rendered does even and exact justice between the parties, and givés effect to their clear intention as. manifested by their writings, for its effect is to give the plaintiff the. contract price, and on payment thereof the defendant the bicycles.

If any apparent complication has arisen it is owing to the de-' fault of the defendant, and of this he has no right to complain.

The judgment must be affirmed, with costs;

Daly, P. J., and Bischofe, J., concur.

Judgment affirmed, with costs.  