
    Call v. Seymour.
    S. S. & Co. sold and delivered a threshing machine to K. upon the conditions :
    1. That the title, ownership, or possession of the machine should not pass from them to K. until the notes given for the purchase-price should be paid in full.
    2. That S. S. & Co. should have power to declare the notes, so given, due at any time they should deem the debt insecure, and to sell the machine at public or private sale, and apply the proceeds upon the unpaid balance of the purchase-price.
    
      Held: 1. That under the first condition, the property in the machine did not pass to K. until he had paid the purchase-price.
    2. That the right to sell the property, and apply the proceeds, as provided in the second condition, did not divest the sellers of their right of property reserved in the first condition.
    Error to the District Court of Putnam County.
    
      The action in the common pleas was brought by the manufacturing association of Seymour, Sabin, & Co., against the plaintiff in error, Call, a constable, and Crawfis and Cannie the sureties on his official bond. The plaintiff alleged that it had sold a threshing machine to one Kagy for the sum of $440, for which it had taken his three notes, or contracts in the form of notes. These notes were alike in form, and became due on January 1,1879, January 1, 1880, and January 1,1881, respectively.
    The following is a -copy of the note first falling due :
    “ Leipsic, Ohio, August 1, 1878.
    On the first of January, 1879, the subscriber, whose post office is Leipsic, county of Putnam, and State of Ohio, promise to pay Seymour, Sabin, & Co., or order, one hundred and forty-seven dollars, for' value received, with interest at eight per cent, per annum till paid, with exchange on New York, payable at the national Exchange Bank, Ottawa, Ohio. The express conditions of the sale and purchase of the Separator and Horse Power, for which this note is given, is such, that the title, ownership or possession does not pass from the said Seymour, Sabin, & Co., until t this note, with interest, is paid in full. The said Seymour, Sabin, & Co., have full power to declare this note due and take possession of said Separator and Horse Power at any time they may deem this note insecure, even before maturity of the note, and to' sell the said machine at public or private sale, the proceeds to be applied upon the unpaid balance of the purchase price.
    .Leander Kagy.”
    The plaintiff in its petition alleged that the defendant Call, as constable, on or about the 15th day of March, 1879, took possession of the machine under an order of attachment duly issued to him as constable of Blanchard township, Putnam County; and that when he so took possession of the machine, he had full knowledge that Kagy was not the owner of the machine, but that the ownership therein Avas claimed by the plaintiff, the manufacturing association of S. S. & Co. The petition further alleged that Call, the constable, with full knowledge of the claim of the plaintiff in and to the machine, sold it at a constable’s sale, and further alleged that the purchase price of the machine remained wholly unpaid, and that the return of the machine to S. S. & Co. had been demanded of Call, the constable, before the sale by him, and of the purchaser after constable sale. And that the constable and the purchaser had each refused to surrender or return the property.
    A demurrer Avas sustained to the petition in the common pleas, and judgment given for defendants.
    This judgment Avas reversed by the district court. It is now sought to reverse the judgment of the district court.
    
      Wm. C. 6r. Krauss, for plaintiff in error.
    The cases relied on by defendant in error are mere rent contracts with the option to purchase, while the case at bar Avas a conditioned sale with absolute agreement to pay, and this was an evasion of the registration larv. Ilart v. Barney, 7 Fed. Rep., 543, 552 ; Hervey v. Locomotive Works, 93 U. S., 664, 672; 1 Benjamin on Sales, § 452; Boynton v. Libby, 62 Me., 253; Bugbee v. Stevens, 53 Vt., 389; McClelland v. Nichols, 24 Minn., 176; Williams v. Porter, 41 Wis., 422; Bunn v. Valley Lumber Co., 51 Wis., 376; Singer Co. v. Holcomb, 40 IoAva, 33; Myer v. Car Co., 102 U. S., 110; Whitcomb v. Woodworth, Yt. Sup. Ct., Jan. 7, 1882, and numerous cases in Penn., e.g., Martin y. Mathiot, 14 S. & R., 214; Heryford v. Davis, 102 U. S., 235.
    
      C. J. Swan, for defendant in error,
    relied on Sage v. Slentz, 23 Ohio St., 1; Sanders v. Keber, 28 Ohio St., 630, and cited 1 Parsons on Con., 538; Maynard v. Anderson, 54 N.Y., 641; Wait’s Dig. Par., 109, p. 664; 40 N.Y., 341; 15 N.Y., 409; 3 Gray, 546; 2 Pick., 516; Story on Sales, §§ 304-313.
   McCauley, J.

When the constable took possession of the property, the first instalment of the purchase price was past clue and no part of the purchase price had been paid. If the contract under which the machine whs de-. livered to Kagy was effectual to retain to Seymour, Sabin, & Co., the title to the property until the price had been paid, their right to the machine when it was taken by the constable was complete. The agreement between Kagy and Seymour, Sabin, & Co., by which the latter retained the title and ownership of the machine until the purchase price was fully paid, was a contract that the seller eoulcl make by reason of his right to determine for himself upon what terms and conditions he would part with his property; and when the conditions proposed were assented to by Kagy, the purchaser, the conditions proposed became binding upon him; and, if not to all purchasers from him, certainly to all purchasers with knowledge of the rights of the seller. The rule where property is delivered to a purchaser upon condition that title shall not pass until the price has been paid, that the condition must be performed to divest the seller of his property, is one of such universal application, that it no longer rests upon the mere weight of authority. Of the many cases enforcing this rule, a few of the more recent and direct are : Sage v. Slentz, 23 Ohio St., 1; Sanders v. Keber Miller, 28 Ohio St., 630; Fosdick v. Schall, 99 U. S., 235; McFarland v. Farmer, 42 N. H., 386; Stadtfeld v. Huntsman, 92 Pa. St., 53; Benner v. Puffer, 114 Mass., 376; Hasbrouck v. Lounsberry, 26 N. Y., 598; Ballard v. Burgett, 40 N. Y., 314; Boon v. Moss, 70 N. Y., 465; Cole v. Berry, 42 N. J. L., 308; Wangler v. Franklin, 70 Mo., 659; Bradshaw v. Warner, 54 Ind., 58.

The note in this case provided that if the seller should deem the debt insecure, he should have the right to declare the notes due, and sell the property at public or private sale, and apply the proceeds upon the unpaid balance of the purchase price. It is urged for plaintiff in error that this provision of the contract indicates that the sale is not one upon condition, but is a complete sale and delivery that passes the title.

If this provision of the contract stood alone, the effect claimed for it would probably follow. This part of the contract looks as if a sale and delivery passing the title to the purchaser was intended; but all parts of the contract are to be taken together to arrive at its full legal effect. This provision of the contract does not secure to the sellers any right they did not have without it, assuming that their reservation of title under the first condition was effective. It stipulated for the right to declare the notes due before maturity, and that after the property was sold the proceeds should be applied to the payment of the purchase price, and thus relieve the debtor; while, if the sellers remained the owners, their right to sell was not restricted by any agreement as to the application of the proceeds of the sale. The condition was, therefore, a concession to the purchaser, the legal effect of which would be that after the purchase money was paid in full, if any remained it should be accounted for by the seller to the buyer. This mode of dealing seems inconsistent with the relation of seller and buyer, and would be so in cases not controlled by special contract. The reason why the title to the property did not pass was that it was agreed that it should not, and that no subsequent agreement or condition between the parties was made or assented to that waived this condition.

Judgment affirmed.  