. . . A limitation upon this general rule appears to arise when it is manifest that the contract was made with a purpose by the parties that it is to be performed in a particular place and is to be construed as to its validity and meaning as well as to its mode of performance by the law of that other jurisdiction." See also Mercier v. Nashua Buick Co. 84 N.H. 59; Novak v. Fontaine Furniture Co. 84 N.H. 93, 97. The sales act, G.L. (Ter.
" Mercier v. Nashua Buick Co., 1929, 84 N.H. 59, 64, 146 A. 165, 168. The vendee, if the vendor has put an end to the vendee's right of redemption by disposing of the property, is entitled to an accounting from the vendor, wherein the latter "must give credit for the value of the property or for whatever he receives for it, whichever is greater, and for any other proper elements of damage sustained by the vendee.
Ballinger v. West Publishing Co., 44 App. D.C. 49; Southern Ice Coal Co. v. Alley, 127 Tenn. 173, 154 S.W. 536. Equitable principles should bar the seller from the pursuit of more remedial action than will give satisfaction of the buyers' actual obligation. Mercier v. Nashau Buick Company, 84 N.H. 59, 62, 146 A. 165. In the contract under examination, the first of the three provisions authorizes the retaking of the chattel by the seller and its redemption by the buyer within five days by the payment of the "unpaid balance and the expense of retaking."
Compliance with this mandate was a condition precedent to the recovery of any deficiency due under the terms of the conditional sales contract. The cases of Mercier v. Nashua Buick Co., 146 A. 165 (N.H. 1929) followed by Randall v. Pingree, 125 A.2d 658 (N.H. 1956), with contrary result, are urged upon us. These cases rest upon the statute particular to that State and are not controlling. Appeal denied.
The change from the purport of the uniform statute which was thus effected by our Legislature was consistent with the law as previously established in this jurisdiction under prior statutes. Mercier v. Company, 84 N.H. 59. See also, Cutting v. Whittemore, 72 N.H. 107. Hence under the present statute as enacted in 1945, the seller must be deemed entitled following repossession to recover any deficiency to the extent provided by section 25 (RSA 361:26), regardless of whether a resale is conducted as provided by section 19 (Id., s. 20); at least in cases such as this one. where less than fifty per cent of the purchase price has been paid at the time of repossession, no statutory resale has been demanded by the buyer (s. 20) (RSA 361:21), and there has been no rescission as permitted by the provisions of section 26 (RSA 361:27). The findings and rulings of the Trial Court indicate that the verdict was based on the provisions of section 26 of the statute.
Where redemption is not sought, he is ordinarily entitled to credit for all sums received for the repossessed chattels and not less than their fair value. Griswold v. Morse, 59 N.H. 211; Mercier v. Company, 84 N.H. 59; Caraway v. Jean, 97 N.H. 506. The further issue is presented whether the bank's bid for the Ford truck on foreclosure, which was for the balance of over $1,400 then due on the defendants' note, may be reformed so as to reduce its undertaking to the amount of $200 credited on the note.
Esty Green v. Graham, 46 N.H. 169, 170. Under the circumstances the equitable mortgagee had a right to replevy and sell the property and pay himself in full. Leach v. Kimball, 34 N.H. 568; Mercier v. Company, 84 N.H. 59. The fact that the sale was not pursuant to notice as required (R.L., c. 262, ss. 25-28) does not make it invalid as against the defendant nor deprive the plaintiff of his right to recover all that was due him less any damage done to the defendant on account of the loss of his right of redemption. Leach v. Kimball, supra. "Resort to repossession and suit for the price should not bar each other, and the remedies may well and properly be concurrent to the point of satisfaction." Mercier v. Company, supra, 62. The record shows that the plaintiff as an endorser paid to the bank $234, including $10.50 interest.
As to what would be considered such transfer of title has been before this court many times. In Hansen v. Kuhn, 226 Iowa 794, 797, 285 N.W. 249, 252, we quote with approval from Mercier v. Nashua Buick Co., 84 N.H. 59, 63, 146 A. 165, 168, as follows: "`In its structure and contemplation a conditional sale is no different from any other completed sale.
The rights of the plaintiff, if any, by reason of the defendant's disposal of the Packard are not involved, and are not affected hereby. See Mercier v. Company, 84 N.H. 59. Judgment for the defendant.
But other than the retention of title for security purposes, a conditional sale, in structure and contemplation, is not different from an absolute, unconditional sale. Hansen v. Kuhn, supra, 226 Iowa 794, 797, 798, 285 N.W. 249; Mercier v. Nashua Buick Co., 84 N.H. 59, 146 A. 165, 168. Under such a conditional sale the vendee, and not the seller, is liable for any tax against the chattel before repossession by the seller. Universal Credit Co. v. Mamminga, supra, 214 Iowa 1135, 243 N.W. 513. And this is true where the security is not by retention of title but by chattel mortgage.