A case which presents a still closer analogy to that primarily under discussion arises in the law of conditional sales.86 . In such sales the seller may recover the full price, though the title to the goods has not been transferred. It is further generally held that though the seller may sue for and recover earlier instalments of the price without thereby losing his right in the goods,87 if he sues for the whole price or the last instalment thereof, he cannot thereafter reclaim the goods, although according to the contract the title was to remain in the seller until the price was paid.88 Thus the seller loses a title which by

82 See infra, Sec.1461.

83Thus if a defrauded buyer rescinds a sale and subsequently takes the goods without the seller's assent, the buyer is a converter, and the seller must sue him as such, and not as a buyer. Teeter v. Cole Mfg. Co., 161 N. C. 602, 66 S. E. 582.

84 See Keener, Quasi-Contracts, 150.

85 It is actually held that the property in the goods passes to the defend* ant either when judgment is given for the plaintiff or when the execution upon the judgment is satisfied. See Miller v. Hyde, 161 Mass. 472, 37 N. E. 760,25 L. R. A. 42,42 Am. St. Rep. 424. So late a time as either of these days seems somewhat inconsistent with the rule of damages, because in order to justify full damages it would seem on theory that the plaintiff must have had a cause of action justifying such damages at the time the action was brought, an assumption which can be sustained as a universal rule only on the theory that the property had passed to the defendant at that time. If we take the time of transfer, however, to be the later period when judgment is rendered or execution satisfied, there is still a case where the ownership is transferred from one party to the other without the assent of both parties and without the aid of a court of equity. 86 See supra, Sec.735.

87 Haynes v. Temple, 108 Mass. 372, 84 N. E. 467; Schmidt v. Ackert, 231 Mass. 390, 121 N. . 24.

88 Hollenberg Music Co. v. Bankston, 107 Ark. 337, 154 S. W. 1139;

Parke, etc., Co. v. White River Lumber v. Strong, 25 Ida. 721, 139 Pac. 847;

Co, 101 Cal. 37, 35 Pac. 442; Holt

Mfg. Co. v. Ewing, 109 Cal. 353, 42

Rw. 435; Eteom v. Moore, 11 Cal.

App. 377, 105 Pac. 271; Crompton v. Beach, 62 Conn. 25, 25 Atl. 446,

18 L R. A. 187, 36 Am. St. Rep. 323;

Smith t. Gilmore, 7 D. C. App. 192;

Rase 9. Teller Corp., 22 Ida. 807, 128

Pac. 961; North Robinson Dean Co.

Ehrood State Bank v. Mock, 40 Ind.

App. 685, 82 N. E. 1003; Richards v. Schreiber, 98 Iowa, 422, 67 N. W.

569; Bailey v. Hervey, 135 Mass. 172;

Whitney r. Abbott, 191 Mass. 59, 77

N. . 524; Schmidt v. Ackert, 330

Maw. 231, 121 N. E. 24; Button v.

Trader, 75 Mich. 295, 42 N. W. 834;

Young v. Phillips, 169 N. W. 822;

Akkno. Dyer, 92 Minn. 134, 99 N. W.

784; Frederickson v. Schmittroh, 77

Neb. 724, 112 N. W. 564; Orcutt v.

Kickenbrodt, 42 N. Y. App. D. 238,

® N. Y. S. 1008; Mathews Piano Co.

v. Markle, 86 Neb. 123, 124 N. W.

1129; Dowagiac Mfg. Co. v. Mahon,

13 N. Dak. 516, 101 N. W. 903} 905;

Barney v. Smith, 56 Wash. 604, 106

Pac 160; Winton Motor Carriage Co.

*• Broadway Automobile Co., 65

Wash. 650, 118 Pac 817, 37 L. R. A.

(N. S.) 71; Stewart & Holmes Drug it the full amount due him. Of course, as in the case of a mortgage, the seller should be restricted to satisfaction of his claim with interest. If, therefore, judgment for the price is satisfied in part, this should be credited, and any excess over the amount due, which may be acquired by seizing and disposing of the goods should be returned to the buyer. Though the cases cited at the beginning of this note may be erroneous for the reason just given, the error does not relate to the matter for which the oases are here cited; namely, the power of a court of law to treat an election on the part of the plaintiff as effectual to transfer title to property to the defendant. Suing for the earlier instalments of the price would probably nowhere be held inconsistent with a subsequent claim to resume possession of the goods. Haynes v. Temple, 108 Mass. 372, 84 N. E. 467. 90 Winton Motor Carriage Co. v.

Co. *. Reed, 74 Wash. 401, 133 Pac.

577. See also Smith v. Barber, 153 Ind. 322, 53 N. E. 1014. These decisions seem erroneous and are opposed to the following: Forbes Piano Co. v. Wilson, 144 Ala. 586, 39 So. 645; Jones v. Snider, 99 Ga. 276, 25 S. E. 668; Foster v. Briggs Co., 6 Ind. Ty. 342, 98 S. W. 120; Westinghouse Co. v. Auburn Co., 106 Me. 349, 76 AtL 897; Dederick v. Wolfe, 68 Miss. 500, 9 So. 350, 24 Am. St. Rep. 283; Mc-Pherson v. Acme Lumber Co., 70 Miss. 649, 12 So. 857; Campbell Press Co. v. Rockaway Pub. Co., 56 N. J. L. 676, 29 Atl. 681, 44 Am. St. Rep. 410. See also Thomason v. Lewis, 103 Ala. 426, 15 So. 830; Fuller v. Byrne, 102 Mich. 461,60 N. W. 980; Ratchford v. Cayuga County Cold Storage Co., 217 N. Y. 565, 112 N. E. 447; Matthews v. Lucia, 55 Vt. 308. See also Cutting v. Whittemore, 72 N. H. 107, 54 Atl. 1098. The error in the decisions first cited is this- the reservation of title by the seller is for the purpose of securing the price. The transaction is in its essence the same as a chattel mortgage given by the buyer on the purchased property to secure the price. See supra, Sec.Sec.734-738. Just as the mortgagee may sue for the price and also foreclose his mortgage upon the property, so the seller in a conditional sale should be allowed to sue for the price and also reclaim the property, not as his own, but for the purpose of foreclosing it; that is-for the purpose of endeavoring to realise from the contract was still to remain in him, and the buyer acquires it when and because the seller elects to sue for the price. So if a seller transfers a note given as security for the price of the goods he has been held to vest title absolutely in the buyer.89 It may be added that if the seller reclaims the goods, he is usually denied recovery thereafter of any unpaid balance of the price.90 A further illustration is found if the seller under a conditional sale attaches or levies execution upon the property sold. Even in jurisdictions which do not regard the mere act of suing for the price a binding election, such a seizure debars the seller from thereafter reclaiming the goods. In effect it transfers the property to the buyer.91 The sajne rule is applied in the case of chattel mortgages. Even in jurisdictions where it is held that a mortgage vests a legal title in the mortgagee, attachment of the goods by him deprives him of all rights of ownership in the property.92