on the notes, to enforce payment of the money stipulated to be paid in the agreement. * * The plaintiff cannot retain the machines, and at the same time demand payment of their value. The contract does not so provide, and justice will not permit it. *They could not adopt both, unless it was plainly expressed in the contract, or a necessary implication from its terms. The words of this contract negative such a construction. * ** They [the plaintiffs] rescinded the contract by retaking into their possession the subject of it, which they had a right to do, and then immediately entered their bond, and issued execution to levy on other property of defendant, which they had no right to do, for the contract or obligation, to which the bond was collateral, no longer existed. It ought to have been surrendered to defendant when he demanded it, at the time plaintiffs took away the machine. The judgment of the court below in each case is affirmed. FRISCH v. WELLS. (Supreme Judicial Court of Massachusetts, 1909. 775, 23 L. R. A. [N. S.] 144.) 200 Mass. 429, 86 N. E. Replevin by Max Frisch against Frank E. Wells. On report from the superior court. * * * BRALEY, J. Under the contract, title to the replevied chattels was not to pass to the vendee, until the purchase price had been fully paid, and a bill of sale given. But after having paid a part by installments, his failure to make other payments was a breach, which entitled the vendor, who had not broken the contract, either to treat it as an agreement for goods sold and delivered, and to sue at once for the price, or in tort for conversion, or in replevin for their specific recovery. If the first remedy was used, it rested upon the theory that after breach, at the election of the plaintiff, the title passed to the vendee, who received and retained the property. But if the second remedy was resorted to, the remedial right rested upon the assumption that, as the bill of sale had not been given, the title still remained in the plaintiff. * * * These remedial rights, although alternative, were therefore inconsistent, and, while the plaintiff had his choice of either, he could not resort to them all. Nor is the case of Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, 25 L. R. A. 42, 42 Am. St. Rep. 424, on which the plaintiff relies, in conflict. A majority of the court there held that, without satisfaction, a judgment for the plaintiff, in an action of tort for conversion, did not vest in the defendant title to the chattels, and, as the remedies were consistent, replevin for the horse could be maintained against his vendee. * * * It must be presumed, from the record, that with knowledge of his legal rights, and being in possession of the facts, the plaintiff chose to bring suit for the balance due, and to arrest, and hold the body of the debtor, until he was discharged upon taking the oath prescribed by Rev. Laws, c. 168, § 40. The plaintiff failed to enter the writ. It is not, however, the judgment which may be obtained, but the commencement of a suit to enforce a coexisting inconsistent remedy in a court having jurisdiction, which constitutes the decisive act, and makes the election binding. The answer was a general denial, which * * * * * ** put in issue, not only the plaintiff's right to possession, but his title to the property. Having once made an irrevocable election the title was relinquished or waived, and the present action is absolutely barred. * * * The rulings at the trial were correct, and by the terms of the report judgment is to be entered for the defendant with damages in the sum of one dollar, and for a return of the goods. * So ordered. LAMBERT v. ROBINSON et al. (Supreme Judicial Court of Massachusetts, 1894. 162 Mass. 34, 37 N. E. 753, 44 Am. St. Rep. 326.) LATHROP, J. The declaration of this cause is for breaking and entering the plaintiff's close; and it alleges, further, in the same count, an assault upon the plaintiff by striking him on the head a violent blow with a dangerous weapon, and also assaults upon the plaintiff's wife and daughter. The answer is a general denial, and an amended answer alleges, if the defendants "did assault in the manner alleged by the plaintiff, that said assault was justified by the acts of the plaintiff." No question of pleading is raised in the case, and we are not called upon to determine whether the alleged assaults upon the plaintiff and his wife and daughter can be considered as distinct charges or injuries, or merely as matters in aggravation of damages. * * It appears from the bill of exceptions that the plaintiff had hired of the defendant certain articles of furniture, for which he had paid as rent the sum of $5, and promised to pay the further sum of $1 a week, until the sums paid should amount to the sum of $31.29, and such further sums as might be added to the amount by the plaintiff, at which time the rent was to cease, and the articles become the absolute property of the plaintiff. The agreement was in writing and signed by the plaintiff, described him as of 79 Broadway, Chelsea, and contained these clauses: "But, in the case of failure to pay said rent as aforesaid, the said C. H. Robinson & Co., or their agents, may, without demand or notice, or being deemed guilty of any trespass or tort, and without thereby rendering themselves liable to refund any sums received by them as rent aforesaid, enter any house or place where said articles may be, and take possession of and remove said articles therefrom.” “And I further agree that, so long as said rent shall be payable as aforesaid, I will not injure, sell, mortgage, or relet the said articles. or remove the same from the above mentioned place; and that, in case of failure to pay the rent, I will, on demand, return said articles to said C. H. Robinson & Co., or their legal representatives." It is very clear that a breach of the last clause cited by a removal of the furniture gave to the plaintiffs no right to enter upon the land of the plaintiff, or to retake the furniture. The right to enter and retake the furniture is given only by the clause first cited, and this applies only in the case of a failure to pay rent. There is no doubt that the license to enter given by the plaintiff to the defendants was irrevocable. * * * The only question of law raised in the case arises upon the defendant's request to the court to rule, as matter of law, that, upon the evidence, the entry of the defendants was reasonable and proper, and that the plaintiff could not maintain this action. This request was refused. The case was submitted to the jury, with full instructions not excepted to, except so far as inconsistent with the above request; but the bill of instructions does not set forth what instructions were given. Soon after the defendants' servants entered upon the plaintiff's premises, they attempted to remove the furniture, and were resisted by the plaintiff, and it was during this resistance that the assault complained of occurred. The defendants' servants did not succeed in getting the furniture, and it is still in the possession of the plaintiff. * * * We are met at the outset with the question what is the rule of law applicable to the conduct of a person who has a right to enter upon the land of another? The plaintiff contends that the defendant had no right to use personal violence when resisted; and that they could not enforce their rights by a breach of the peace; and that, upon being resisted, they should have desisted, and resorted to legal remedies. The defendants upon the other hand contend that, having a right to enter and remove the furniture, they were entitled to use such force as necessary, and that they were only liable in case they used excessive force. * The case of Low v. Elwell, 121 Mass. 309, 23 Am. Rep. 272, must be considered as settling the law of this commonwealth that a person who has a right to enter upon the land of another, and there do an act, may use what force is required for the purpose, without being liable to an action. If he commits breach of the peace he is liable to the commonwealth. If he uses excessive force, he is liable to a personal action for an assault. * * * The remaining question is whether there was evidence of the use of excessive force on the part of the defendants' servants, proper to be submitted to the jury. We are of the opinion that there was. There was evidence that when one of the defendants' servants knocked at the outside door, and it was opened by the plaintiff's daughter, these servants entered into the house in a violent and rude manner, throwing the girl back on the stairs, and frightening her; and that afterwards one of the servants went around to the rear of the house, and opened a window, jumped into the house and pushed the plaintiff's wife violently against the side of the house; and that when the plaintiff arrived, he found these servants sitting down in the parlor; and that he asked them why they were there, and what they wanted, and opened the doors, and requested them to go out, and they made no reply; that he then went to the kitchen, and got a rolling pin, and returned into the room where the men were; and that thereupon one of them seized him by the arm, and another of them wrested the rolling pin from him, "and committed the assault complained of." It is impossible, on this evidence, to say that there was no evidence of excessive force. The ruling requested by the defendants was therefore rightly refused, and the entry must be: Exceptions overruled. OSBORN v. SOUTH SHORE LUMBER CO. (Supreme Court of Wisconsin, 1895. 91 Wis. 526, 65 N. W. 184.) Action by A. R. Osborn against the South Shore Lumber Company to recover the price of logs sold by plaintiff to defendant. From a judgment for plaintiff, defendant appeals. Plaintiff sold to the defendant a quantity of sawlogs, to be paid at the rate of $6.10 per 1,000 feet, according to the scale to be thereafter made on the mill deck. The logs were delivered in defendant's boom at defendant's mill, and taken charge of by it, and plaintiff did all he was to do under the contract. The contract contained the following provisions: "It is expressly understood and agreed by the parties hereto that the legal title to and the right to possession of said logs, and the lumber to be manufactured therefrom, shall be and remain in the party. of the first part, as security for the unpaid purchase price, until the same shall have been fully paid, and that the party of the second part will at all times keep on hand a sufficient quantity of said logs or lumber, separately piled, to secure the balance owing to the party of the first part, the party of the second part having the right to sell and dispose of said logs and lumber for which full payment shall have been made; and in case of default of party of the second part in making any of the payments hereunder, or in case of failure on his part to perform any of the conditions hereof, the party of the first part shall have the right to take immediate possession of said logs or lumber, and sell or dispose of the same at public auction, upon giving ten days' notice, for the purpose of satisfying the balance due by virtue of this contract, and all costs and expenses in taking, keeping, and disposing of said property, and retain the same out of the proceeds of said sale, returning the surplus proceeds of said sale to the party of the second part. "Some of the logs were lost after they were delivered into the defendant's possession as before stated, by being broken out of the boom by the movements of a lumber boat. Proof of the whole amount of the logs delivered, including those not scaled on the mill deck, because lost, was permitted. Defendant requested the court to charge the jury, in effect, that plaintiff was not entitled to recover for the lost logs, which was refused and defendant excepted. The court then charged the jury, in effect, that all logs delivered, including those lost, should be paid for, which was excepted to by the defendant. MARSHALL, J. (after stating the facts). The sole question presented is whether the defendant is liable for the logs that were lost, in view of the fact that plaintiff retained the title solely as security, and that such logs were never scaled on the mill deck. Where property is sold and delivered, and the vendor had fully performed all the conditions of the contract of sale on his part, and the intention of the parties at the time of the making of the contract, as in this case, clearly is that the vendor is to have no interest in the property after delivery, except as security for the unpaid purchase money; that, subject to the right to resort to said property as such security, the entire dominion and control over the same are turned over to and assumed by the vendee, as such, although, for the purpose of retaining effectually the security, the contract of sale provides that the title and right of possession shall remain in the vendor, as security, until the purchase price is fully paid, and though the amount of the property is yet to be ascertained by a measurement, in order to determine the amount of the purchase money-if any of such property is lost after such delivery, before measurement, such loss must fall upon the vendee, whether the loss accrues through his negligence or otherwise, and the amount of such lost property can be ascertained by competent evidence. The relation of the parties to each other in respect to the question here presented, in such a case, is the same as between a mortgagor and mortgagee of personal property, though the form of the instrument be that of a conditional sale; and the authorities holding that in case of a conditional sale, strictly so called, the risk of loss is on the vendor till title actually vests in the vendee, have no application whatever to such a state of facts. The conditional vendee, having possession subject only to the vendor's reservation of title as security for the unpaid purchase money, is in a sense the owner; if he pays the purchase money, he becomes the absolute owner, without any new transaction or bill of sale; if the goods be wrongfully taken away from him by a third party, he may recover their full value from the wrongdoer; and if the property is lost or stolen while in his possession, whether by or without fault on his part, he must nevertheless pay the full price agreed upon. *The ruling challenged on this appeal is substantially in accord with the law as here stated, and it follows that the judgment of the circuit court must be affirmed. * * Judgment affirmed. SECTION 4.—REMEDIES OF THE BUYER NEW HOME SEWING MACHINE CO. v. BOTHANE. (Supreme Court of Michigan, 1888. 70 Mich. 443, 38 N. W. 326.) Replevin by the New Home Sewing Machine Company against Minnie Bothane. Plaintiff sold a sewing machine to defendant under an agreement that the title was to remain in the former until payment of the price. After defendant had made several payments, the plaintiff replevied the machine without a demand. Judgment for defendant, and plaintiff appeals. CAMPBELL, J. In this case the plaintiffs, who had sold defendant a sewing-machine for $65, all of which but $10 had been paid, replevied it without demand. The reason given on the trial was a failure to pay part of the price at the time specified. In the court below the jury were instructed that plaintiff could not replevy without a demand, and a verdict was rendered, under the court's instruction, for $62.70, being the amount paid on the machine, with interest. The testimony showed, without contradiction, that the machine was worth $65, and there was no proof of the value of its use. As defendant was lawfully in possession of the machine, and had nearly paid for it, there can be no doubt of her right to retain it until plaintiffs, by demand, had rendered her further holding without full payment unauthorized. Our decisions leave this question open to no argument. The only question open to consideration is as to the judgment actually rendered. There being no dispute on the facts, the matter is considerably simplified. If the plaintiff's had disaffirmed the contract by proper notice, and defendant had failed to pay up the balance due, a question might arise as to her remedy for the return of what she had paid, and how far, if at all, she could insist upon a lien till its repayment. But until the contract should be forfeited, or attempted to be forfeited, by a proper demand, defendant certainly had not only a right to hold the machine, but also an interest in the machine itself, which, if defeasible, was good till defeated; and, this being so, we see no reason why she could not waive a return, and take a judgment for the value of her interest. As the machine was shown to have lost |