The Oklahoma Supreme Court instructs that "[t]he circumstances of each case must be considered in determining whether or not a `breach of peace' has taken place, and the jury is the judge of the facts." Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017, 1018 (1930). The plaintiff's resistance to the taking of his property need not be "strong."

" The case cited by Appellant, Ben Cooper Motor Company v. Amay, 143 Okla. 75, 287 P. 1017 (1930), stands for the proposition that the owner who is present does not have to resist by force; that in that instance it would be a jury question of whether or not a breach of peace has taken place. That case is not applicable because here the owner was not present, so there was no question of resistance or lack of resistance for the jury to consider.

The evidence in this connection tends to show that, immediately after the salesman demanded the vehicle or the balance due, plaintiff went to the home of his brother to seek legal advice, and that he was generally unwilling for the salesman to take the car; that the salesman told plaintiff that plaintiff might as well give him the vehicle because he was going to take it anyway. In Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017, we held that a man is not required to use physical force to resist the taking of his property by another; that the circumstances of each case must be considered in determining whether the taking was without the consent of the owner, and that generally it is a question for the jury. We think the evidence in the instant case was sufficient to warrant submission of the question of consent to the jury.

(Citing many cases, Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S.W. 275, 60 L.R.A. 143, 97 Am. St. Rep. 901 (1903). The following authorities directly support the rule as set forth in the Restatement, supra: First National Bank v. Winter, 176 Okla. 400, 55 P.2d 1029 (1936); Leedy v. General Motors Acceptance Corporation, 173 Okla. 445, 48 P.2d 1074 (1935); Malone v. Darr, 178 Okla. 443, 62 P.2d 1254 (1936); Runnels Chevrolet Co. v. Clifton, 46 S.W.2d 426 (Texas, 1932); Eagle Furniture Stores v. Jones, 110 S.W.2d 610 (Texas, 1937); Waggoner v. Koon, 67 Okla. 25, 168 P. 217 (1917); J.I. Case Threshing Mach. Co. v. Barney, 54 Okla. 686, 154 P. 674 (1916); Fulton Inv. Co. v. Fraser, 76 Colo. 125, 230 P. 600 (1924); Childers v. Judson Mills Store Co., 189 S.C. 224, 200 S.E. 770 (1939); Day v. National Bond Investment Co., 99 S.W.2d 117, (Mo., 1936); and see Annotation in 57 ALR, page 26. Contra: see McClellan v. Gaston, 18 Wn. 472, 51 P. 1062 (1898), and Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017 (overruled on this point in First National Bank v. Winter, supra). We shall next consider the manner in which one having the immediate right to possession may take it.

The mortgagor, in the case at bar, being in default in his payments on the indebtedness on January 4, 1931, the mortgagees had the right to take possession of the mortgaged property, provided it was done without resorting to force, stealth, or fraud and without a breach of the peace, even though a demand for possession had not been made upon the mortgagor and he had not given his consent to the mortgagees' taking possession. The mortgagor refers to the case of Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017. In that case the court said:

The rule of law applicable is, that the lienholder under chattel mortgage, or title holder under conditional sales contract, who becomes entitled to repossess for conditions of the contract broken, may take possession of the property provided he does not thereby use force or threats of violence against the person having possession or control, or does not breach the peace. 11 C. J. 560; 5 R. C. L. 462, sec. 98; J. I. Case Threshing Mach. Co. v. Barney, 54 Okla. 686, 154 P. 674, and Leedy v. G. M. A. C., 173 Okla. 445, 48 P.2d 1074. The case of Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017, adds an element "without the consent of the owner," but this seems to be without foundation in the light of our previous and subsequent decisions. Unless the consent of the owner is refused, the controversy could not arise.

This court has defined conversion to be any distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein. Aylesbury Mer. Co. v. Fitch, 22 Okla. 475, 99 P. 1089; Bilby v. Jones, 39 Okla. 613, 136 P. 414; Dodd-Lear Hardwood Lbr. Co. v. Gyr, 44 Okla. 630, 146 P. 16; Probst v. Bearman, 76 Okla. 71, 183 P. 886; Sivils v. Aldridge, 62 Okla. 89, 162 P. 198; First Nat. Bank of McLoud v. City Nat. Bank of Wellington, Tex., 71 Okla. 52, 175 P. 253; Mayo v. Thede, 73 Okla. 181, 175 P. 348; Wilson Motor Co. v. Dunn, 129 Okla. 211, 264 P. 194; Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017. The evidence on the part of the plaintiff shows that defendant in March, 1929, told plaintiff that he could put in a crop on two small tracts, aggregating about 12 1/2 acres, land belonging to defendant, 9 1/2 acres on the tract in question and about 3 acres on another tract, and would furnish plaintiff land, teams, tools, and seed to make the crop, and would furnish plaintiff with provisions until July 1, 1929; the plaintiff planted cotton on both tracts and moved upon the land.

" While this particular instruction is no model, yet it fairly states the law applicable to this case, and we hold that its application to this particular case is not error. Wilson Motor Co. v. Dunn, 129 Okla. 211, 264 P. 194; Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017. Instruction No. 4 reads as follows:

"In Oklahoma a chattel mortgage creates a lien on the mortgaged property in favor of the mortgagee, and does not convey the title to the property." In the case of Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017, this court in the body of the opinion said: "The law with reference to the right of possession and method of taking possession of chattels by the holder of a chattel mortgage, or the holder of title under conditional sales contract, is the same.

" A valuable note listing other authorities is appended to the report of this case in 57 A.L.R., 26. In Ben Cooper Motor Co. v. Amey, 143 Okl., 75, 287 P. 1017, the same court made further remark to the effect that "A man is not required, in defending his property, to use physical force to resist the taking thereof by another. If he tells the other not to take the property, and the other person, in the face of the instruction, proceeds to take it, that may be conversion. The circumstances of each case must be considered in determining whether or not a `breach of peace' has taken place, and the jury is the judge of the facts.