Since the plaintiffs admittedly made default in the payment of the installment of 22 December, 1950, and subsequent installments, the defendant had the legal right to detain the Ford and sell it for the satisfaction of the unpaid portion of the debt, even under the version of the dealings of the parties given in the pleadings of the plaintiffs. Alsbrook v. Shields, 67 N.C. 383; Haynes v. Temple, 198 Mass. 372, 84 N.E. 467. The plaintiffs bottom their case on the doctrine that the statement of an intention to perform an act, when in truth no such intention exists, constitutes a misrepresentation of a fact, and as such may furnish the basis for an action for fraud if the other essential elements of fraud are present. Roberson v. Swain, 235 N.C. 50, 69 S.E.2d 15; Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364; Bank v. Yelverton, 185 N.C. 314, 117 S.E. 299; Herndon v. R. R., 161 N.C. 650, 77 S.E. 683. The gravamen of their complaint is that the plaintiffs and the defendant made a contract whereby the defendant promised to procure and keep in force during a specified period a policy of collision insurance insuring the plaintiffs against loss or damage exceeding $50.00 caused by the collision of their Ford with any other object, and that in making such promise the defendant practiced a fraud upon the plaintiffs in that it actually intended not to perform the promised act.
Where there is an express agreement between the parties to a conditional sale of goods that title is not to pass until the payment of purchase-money notes, or until a payment in cash; the sale remains conditional until such payment is made. See Harkness v. Russell, 118 U.S. 663, 30 Law. Ed. 285, 7 Sup. Ct. Rep. 51; Monitor Drill Co. v. Mercer, 20 L.R.A. (N.S.) 1065, 90 C.C.A. 303, 163 Fed. 943, 16 Ann. Cas. 214; Riley v. Dillon, 148 Ala. 283, 41 So. 768; Van Allen v. Francis, 123 Cal. 474, 56 P. 339; Anderson Carriage Co. v. Bartley, 102 Me. 492, 67 A. 567; Haynes v. Temple, 198 Mass. 372, 84 N. Ed. 457; Pettyplace v. Groton Bridge Mfg. Co., 193 Mich. 155, 61 N.W. 266. In Solomon v. Pioneer Co-operative Co., 21 Fla. 374, 58 A.R. 667, this Court said: "The intention of the parties as to whether the bill or note was given and received is a controlling element in the issue, and is a question of fact for the jury.
The fact that the legal title has not passed is no impediment to a recovery of so much of the price as may have become due, for the contract provides for the payment of instalments before the passage of title. White v. Solomon, 164 Mass. 516. Smith v. Aldrich, 180 Mass. 367. Haynes v. Temple, 198 Mass. 372. International Textbook Co. v. Martin, 221 Mass. 1, 6. Williston, Contracts, § 735. Williston, Sales (2d ed.) §§ 333, 579. We have no occasion to discuss the question whether the failure to pay one instalment makes the whole price due ( Smith v. Aldrich, 180 Mass. 367, Whitney v. Abbott, 191 Mass. 59, Frisch v. Wells, 200 Mass. 429, 430, Schmidt v. Ackert, 231 Mass. 330, Williston, Sales [2d ed.] § 333), or the effect of a suit for the whole balance of the price remaining unpaid upon a later suit for replevin or conversion, or vice versa.
The title to the machines remained in the plaintiff and upon default by the defendant it had the right to immediate possession. Haynes v. Temple, 198 Mass. 372. Vorenberg v. American House Hotel Co. 246 Mass. 108. Stimpson Computing Scale Co. Inc. v. Gawell, 261 Mass. 378. Bousquet v. Mack Motor Truck Co. 269 Mass. 200. Commercial Credit Corp. v. Gould, 275 Mass. 48. On August 3, 1928, when the second agreement was entered into, the defendant was in possession of the first lot of fifty machines as vendee under a contract of conditional sale.
See Butler v. Hildreth, 5 Met. 49. The principle underlying the decisions is, that a right to the entire purchase price and a right to the property are inconsistent, that an election to assert the right to the full purchase price is a waiver of the right to the property, and that commencing an action for the purchase price remaining unpaid amounts to such an election, since the action is "inconsistent with the theory that the sale is not absolute." Haynes v. Temple, 198 Mass. 372, 374. Frisch v. Wells, 200 Mass. 429, 431. This principle, however, is inapplicable where an action is brought properly for a part, only, of the purchase price remaining unpaid.
In that case it was said: "The plaintiff [vendor] undoubtedly could have sued on each note as it fell due and still retained title." It was expressly so held in Haynes v. Temple, 198 Mass. 372, [84 N.E. 467]. The recovery of possession of the property and of the purchase price thereof are not always inconsistent remedies under such contracts.
The election to assert either right was an abandonment of the other as the remedies while alternative are fundamentally inconsistent, and for reasons stated in Bailey v. Hervey, 135 Mass. 172, Frisch v. Wells, 200 Mass. 429, and Schmidt v. Ackert, 231 Mass. 330, there can be no recovery for either the amount of the notes or of the check which stands no better than if it were a renewal note. We find nothing inconsistent with this result in Whitney v. Abbott, 191 Mass. 59, where it was held that, if a vendor under a conditional sale brings an action for the whole of the purchase money before all the instalments are payable, he is held to have elected to treat the sale as absolute, or in Haynes v. Temple, 198 Mass. 372, where under the conditional contract there construed, it was decided that, although two of the notes had been satisfied, yet until all the notes were paid, title to a horse did not vest in the purchaser, and the vendor, who subsequently had retaken the horse, was not liable for conversion. In accordance with the terms of the report judgment is to be entered for the defendant.
On the maturity of any note except the last, the plaintiff might have brought suit upon such overdue note, and still have retained the legal title to the property. Haynes v. Temple, 198 Mass. 372. When the last note became due, on December 2, 1913, the plaintiff had the choice of two remedies.