Campbell Printing-Press & Manue'g Co. v. Rockaway Pub. Co.

• Decision Date: 18 June 1894
• Citation: 56 N.J.L. 676,29 A. 681
• Parties: CAMPBELL PRINTING-PRESS & MANUE'G CO. v. ROCKAWAY PUB. CO.
• Court: New Jersey Supreme Court

29 A. 681

56 N.J.L. 676

CAMPBELL PRINTING-PRESS & MANUE'G CO.

v. ROCKAWAY PUB. CO.

Court of Errors and Appeals of New Jersey.

June 18, 1894.

Error to circuit court, Morris county; before Justice Magie.

Action by the Campbell Printing-Press & Manufacturing Company against the Rockaway Publishing Company. Judgment for defendant, and plaintiff brings error. Reversed.

R. Wayne Parker, for plaintiff in error. E. A. Quayle, for defendant in error.

VAN SYCKEL, J. The Campbell Company sold to the Rockaway Company a printing press. The contract of sale, which is in writing, provides that in 30 days after the receipt of the bill of lading the vendee shall pay $25 in cash, and give its notes for the balance of the purchase price; that the purchaser shall insure the press, and deposit the policy with the vendor. It was further agreed as follows: "It is also agreed that the deferred payments above mentioned shall be secured by first mortgage on the property herein contracted to be sold. It is further agreed that the title to the said property shall remain in the seller until such mortgage be given, or until the purchase price, with interest, has been fully paid; and in case of any default in any of the terms of this contract the seller shall have the right to take immediate possession of said property. Upon the execution and delivery of the aforesaid mortgage, or the payment of the purchase price in cash, the Campbell Printing-Press and Manufachiring Company agree to execute and deliver a good and sufficient bill of sale of the above-described property." The press was delivered to the Rockaway Company, and notes given for the purchase price to the vendor, but the mortgage to secure the notes was not given. When the notes matured the vendor brought suit upon them, and recovered judgment, and afterwards brought an action of replevin to reclaim the printing press.

The trial court held that the institution of the suit by the vendor for the purchase price was an election of his remedy, and necessarily a waiver of his right to retake the property. Error is assigned upon this ruling of the trial judge, which was based upon the case of Heller v. Elliott, 44 N. J. Law, 467, and 45 N. J. Law, 564. In that case the property was sold for cash on condition that the vendee should pay for it on delivery. After the delivery of the goods by the vendor to the vendee, and after the vendee sold the same goods to one of the defendants, the vendor caused an attachment to be issued against the property of the vendee for the price of the goods, and caused them to be levied on under that writ. After this proceeding the vendor claimed that he was still the owner of the goods, and brought an action of...