
    Silas K. Ainsworth, Plaintiff, v. John W. Rhines, Defendant.
    (Supreme Court, Jefferson Trial Term,
    March, 1901.)
    Sale — Election — Assignment of contract.
    Under an agreement for the lease or sale of a piano, giving the other party an option to purchase it for a fixed sum and further providing that he shall become liable for its value if it is destroyed while in his possession or is not returned on demand, his election to purchase is final, and. therefore where he subsequently defaults in payment and thereafter offers to return the piano such offer cannot excuse him, upon its subsequent destruction by fire while in his possession, from paying the owner its price or value.
    Mise.] . Supreme Court, March, 1901.
    The right to retake the piano and terminate the contract, reserved in terms solely to the vendor, gives the vendee no right to terminate by an offer to return the piano upon becoming dissatisfied.
    Where a contract assigned as security for a loan is, upon payment, redelivered to the owner and the assignment destroyed, title to the contract is restored to the owner and he may thereafter lawfully assign the contract to another. :
    Action to recover the balance of the purchase price, or the balance of the value of a piano delivered by plaintiff’s assignor to the defendant, under an agreement in writing.
    Brown, Carlisle & Hugo, for plaintiff.
    Lot C. Alston, for defendant.
   Hiscock, J.

This action is brought to recover the balance of the purchase price, or the balance of the value of a piano delivered by plaintiff’s assignor, one McDowell, to the defendant, under an agreement in writing which is set forth in the complaint. Without recapitulating that agreement in full, it will be observed that under it the defendant might become liable in any one of three ways. He might be liable simply as lessee of the piano for thirty-six months at six dollars per month. He might become liable as purchaser of the piano for the sum of $275, under the option given him in said agreement. He might become liable for said sum of $275 fixed as the value of the piano, through the same becoming destroyed while in his possession, or through his not returning the same to McDowell on demand.

The plaintiff seeks to charge him with liability upon each of the last two grounds; that is, as purchaser, and for failure to return the piano upon demand. And it seems to me that plaintiff is entitled to recover said sum, less certain credits which he concedes should be made.

The agreement clearly and plainly gave to defendant the option to purchase this piano, paying for it the sum of $275, as prescribed therein. It is charged in the complaint and admitted in the answer that he availed himself of this option and elected to purchase the piano, and paid several installments thereon. Outside of the admissions in the pleadings the evidence shows that he accepted said option and undertook the purchase of the piano. So also it is charged in the complaint and admitted in the answer that plaintiff or his assignor duly demanded the return of the piano, in accordance with the provisions of said agreement, and that the defendant has refused and neglected to return the same.

The fact is that the piano, before the commencement of this action, was destroyed by fire, and this action really 'involves the question of who is to suffer the loss thereby. Defendant, not in any manner denying the agreement set forth in the complaint or the facts making him liable thereunder urged by plaintiff, urges as his real defense that he offered and sought to return the piano to plaintiff’s assignor at some time, and that the latter refused to accept it. The evidence shows that the parties got into friction and disagreement over the question whether defendant should pay interest upon sums unpaid upon the contract. The contract covered this subject, but defendant in substance insisted that he was not able to and could not pay the same. When McDowell refused to relieve him from the payment of interest he (defendant) sought to terminate his contract and return the piano. . And he claims that this has released him from liability in this action. I do not think that this is so. The vendor or lessor of the piano had the right under certain circumstances to terminate the contract and retake the piano, but this was a privilege and option secured to him which was not extended to the defendant. ¡Neither the contract nor the principles of law gave defendant the right, if he became sick of his contract, to terminate it and return the piano and escape further liability. As to him the contract fixed his liability and did not give him the right to terminate it.

Some question was raised upon the trial as to the sufficiency of the assignment by McDowell to plaintiff, but I think that there is sufficient evidence to sustain a finding of such assignment. It seems that this contract at some time was assigned to a bank by McDowell, as security for a loan. This loan was paid up, which terminated the rights of the bank under the assignment. In addition to that, when the loan was paid up, necessarily with the consent of the bank, the assignment to it was destroyed and the contract ..returned to McDowell. While this may not have been the most formal retransfer of the assignment, I have no doubt that it was sufficient to cancel the transfer to the bank and restore title to the contract in McDowell who subsequently assigned to plaintiff.

These conclusions lead to a judgment in favor of the plaintiff for the sum of $275 and interest, less the amounts conceded to be credited thereon by plaintiff.

'Judgment for plaintiff.  