CONDITIONAL SALES.

[Highland Circuit Court,

April Term, 1890.]

Clark, Cherrington and Russell, JJ.

#### *JAMES W. TUFTS v. G. B. HAYNIE.

1. May Appeal when Petition Shows any Right to Equitable Relief.

Where a petition states facts, which if true, would entitle the plaintiff to any equitable relief, the case is a proper one for appeal.

2. Not a Conditional Sale.

There is no such thing as a conditional sale of personal property, where the title to and possession of the property sold, at time of sale, passes out of the vendor and vests in the vendee.

3. Instrument Conveying Chattels to Secure Deferred Installments in Effect a Mortgage.

Tufts sold and delivered to Haynie a bill of chattels to be paid for in installments. To secure payment of the deferred installments, Haynie executed to Tufts an instrument in writing conveying to Tufts all his right, title and ownership in and to said chattels, Haynie being permitted by its terms to hold said chattels for him and enjoy the use of the .same on conditions expressed in the instrument, not amounting to an absolute re-investing of title in Tufts. Held: Such instrument is in effect a chattel mortgage, and not any number of conditions which fall short of re-investing Tufts with the full and absolute title to and control over said chattels will divest it of that ■ character.

4. Foreclosing Chattel Mortgage not Retaking Property.

A suit to foreclose a chattel mortgage securing a sale on installments is not a retaking of the property, and hence is not governed by secs. 7913-72, Rev. Stat., requiring repayment of part of payments.

Appeal from the Court of Common Pleas of Highland county.

The action is for the foreclosure of an instrument claimed to be a chattel mortgage. The petition is in the usual form describing a number of promissory notes, a description of the chattel mortgage attached to and made part of the petition, given to secure the same with the averments that the mortgage had been verified, filed and refiled as required by the statutes of Ohio; praying for judgment on the notes and a decree of foreclosure.

The instrument described in the petition is as follows:

Boston, June 2nd, 1888.

James W. Tufts has this day sold and delivered to the undérsigned the chattels as described in order of October 5th, 1887. (A copy of which is hereon endorsed and marked “Exhibit A” upon the terms therein mentioned).

*669To secure such deferred payments, the undersigned hereby relinquishes and conveys to the said James W. Tufts all right title and ownership in and to said chattels, to have and to hold the same until said indebtedness is paid, and in consideration of such agreement, the said James W. Tufts hereby permits the undersigned to hold said chattels for him, and to enjoy the use of the same at Hillsboro, Ohio, on the following conditions:

If any one of said deferred payments is not paid when the same becomes due, or in case of seizure of same by process of law, the said James W. Tufts is to have and is hereby conceded the right to take said chattels back into his possession without previous demand and without legal writ, and for that purpose authority is hereby given to said James W. Tufts or his agent to enter the premises where said chattels may be located, without legal process, at any reasonable hour of the day and carry said chattels away.

It is expressly understood, however, that if for any of the foregoing reasons said chattels are retaken by said James W. Tufts under the terms of the instrument, the said James W. Tufts may repair and store the same at the undersigned’s expense, and if not redeemed within thirty (30) days, may sell the same at private sale or otherwise in the regular course of business, and pay over to the undersigned the proceeds of such sale remaining, after deducting therefrom all sums still owing on account of the above deferred payments together with all reasonable charges and expenses attending the recovery, repair, storage and sale of said chattels (including court costs and attorney’s fees).

State of Ohio, Highland County, ss.:

G. B. Haynie being duly sworn, says that he is the debtor of the above named James W. Tufts and that the amount of the claim and interest of the said James W. Tufts in the said chattels is at least $860, and is just and unpaid.

(Signed), G. B. HAYNIE.

Sworn to and subscribed in my presence this 13th day of June, 1888.

IRWIN Me. D. SMITH,

Notary Public in and for Highland County, Ohio.

(Then follows the affidavit by agent of Tufts as required by sec. 4154, Rev. Stat. of Ohio).

On the opposite side of said instrument is the following exhibit:

EXHIBIT “A.”

Hillsboro, Ohio, Oct. 5th, ÍL88T.

James W. Tufts, Boston, Mass.:

Forward the following described soda-water apparatus, and upon receipt of Bill of Lading I will favor sight draft for $100, anO the balance I will promise to pay in monthly sums as follows: $20, June 1, 18c.., and $20 per month till paid in full, with interest at 6 per cent, from date of shipment with each payment, and for such balance and interest will execute and deliver a contract of like tenor and form to the one printed on the back of this order, and notes maturing as above set forth.

The delivery of said apparatus, etc., to be conditioned upon compliance with the above terms and conditions.

(Then follows description and price of apparatus, etc.)

(Signed), G. B. HAYNIE.

(Then follows an affidavit by agent of Tufts in conformity with sec. 4154, Rev. Stat.)

The answer of defendant admits the execution and delivery of the notes and the contracts attached to the petition, and further says that prior to the beginning *670of this action he made payments on the purchase of the property described in said exhibit *“A”*amounting to the sum of two hundred and forty dollars ($24-0), which payments consisted of $100, paid upon receipt of bill of lading, required by said contract, and seven (7) notes of $20 each required to be executed by said contract, which said seven (7) notes were other and different notes from the ones set out and described in the petition; and that no part of said sum so paid has been refunded or tendered to this defendant at any time before or since the bringing ol this action.

Defendant therefore prays to be dismissed with his costs.

The cause is submitted to this court on motion of defendant to dismiss the appeal and on demurrer of plaintiff to the answer.

Vance & Hire, for plaintiff.

Newby & Morrow, for defendant.

*

This decision is cited by the common pleas im Vallandingham v. Bliss, 3 Ohio Dec., 681.

Cherrington, J.

The motion to dismiss the appeal is based on the claim that the action is one at law, that the instrument attached to the petition is not a chattel mortgage, but is rather in the nature of a contract evidencing a conditional sale, conceding that if the instrument is a mortgage, the action is equitable in character, and therefore appealable.

While not in the form of a chattel mortgage adopted in general use, we still think it such in legal effect. This is sufficient to dispose of the motion adversely to claim of defendant.

If, however, the instrument would admit of the construction given it by defendant’s counsel, the action would still be appealable it being one in which equitabk relief is clearly prayed for, and properly so, too, as the averments of the petition justify such prayer.

The answer contains nothing that can avail as a defense to the action. The idea of the pleader is, that the pursuit of the remedy here sought is equivalent to taking possession of the property covered by the contract in violation of the provisions of sec. 2, 82 O. L., 238, and that, consequently, the suit cannot be maintained.

I have already said, that if the instrument is not a contract of conditional sale,it cannot, therefore, in any way be affected by the section referred to. If it would admit of the construction claimed for it, still I don’t see that the right to maintain the action can be affected by the statute.

The plaintiff, by this action, is not seeking to take peaceable possession of the property, nor is he seeking to recover possession of it by an action at law for that purpose (neither of which he would be permitted to do without compliance with the section of the statute referred to as to repayment, etc.).

He is, in effect, simply asking the court to take an account of his interest in the property described in the instrument, and, through its proper officer, convert the same into money with which to satisfy that interest.

Motion to dismiss the appeal overruled, demurrer to answer sustained, and decree for plaintiff.