Opinion
June 27, 1906.
A.G. Patterson, for the appellant.
Alexander Neish, for the respondent.
The first question to be determined is as to the rights of the parties under the paper executed between David H. Hammond and Hall Clark upon June 6, 1904. That paper was executed contemporaneously with the purchase of the horse and must be deemed to be the entire contract between the parties. The purchase price of an article sold may be secured in either of two ways: First, by a conditional sale through which the title is reserved in the vendor until the purchase price is paid; secondly, by a chattel mortgage given back by the purchaser. While the object to be accomplished by either form of security is substantially the same the rights of the parties under the two forms of security are materially different. Hence the importance of determining first whether this paper constituted a conditional sale which would thus become subject to the statutes governing the rights of parties under conditional sales, or whether such paper constituted a transfer of title and a chattel mortgage back and should be construed in the light of well-settled decisions governing the rights of mortgagors and mortgagees under such an instrument. It seems clear to me that this paper is an instrument of conditional sale. A chattel mortgage cannot be given unless the mortgagor has title and under this instrument no title ever passed from Hall Clark to David H. Hammond. While there are some provisions in the contract which are ordinarily found in chattel mortgages none of them are inconsistent with a contract of conditional sale, and were it otherwise the fact that no title passed at the time of the sale to David H. Hammond would preclude the possibility of construing the instrument as a chattel mortgage. The parties chose to secure the purchase price by a contract of conditional sale and thereby subjected themselves to the statutory restrictions and regulations of the rights of parties under such a sale.
If then this be a conditional sale, David H. Hammond, within thirty days from the time when the horse was taken by the defendant, had the right to redeem that horse upon the payment of the amount due upon the note. (Lien Law [Laws of 1897, chap. 418], § 116, as amd. by Laws of 1900, chap. 762.) While the lease of the farm and of the property was in form by plaintiff to Maggie Hammond, the fact is undisputed that David Hammond was the active party and was leasing the property in the name of his wife, and that upon November tenth both David Hammond and his wife transferred to the plaintiff their interest in this horse which would transfer all the rights of either of them under this contract. Defendant refused to surrender to the plaintiff this horse except upon payment in excess of that which was due upon the note. The plaintiff's offer to pay the amount due upon the note at the bank where the note was held and his deposit of the money therein to pay the same with full notice to defendant is a sufficient tender so as to entitle him to the possession of the horse under section 116 of the Lien Law before cited. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.