MCGRATH, J.
This is
an action of replevin. In March, 1888, plaintiff's agent
took of defendant an order for certain soda-water apparatus
replevined herein, which order was as follows
"Kalamazoo, Mich., March 7, 1888. James W. Tufts
Boston, Mass.: Forward the following described soda-water
apparatus, and on receipt of bill of lading I will honor
sight draft for $----. The balance I promise to pay in
monthly sums, as follows: May 10, $25, and $25 per month
with interest at 4 per cent. from date of shipment with each
payment; and for such balance and interest will execute and
deliver contract notes of like tenor and form as the one
printed on the back of this order, and maturing as above set
forth. The delivery of said apparatus," etc., to be
conditioned upon compliance with the above terms and
conditions, and said apparatus to remain the property of
James W. Tufts till paid for. [Then follows a description of
apparatus.] E. R. D'ARCAMBAL." On the back of which
appears the following: "$----. 188-. For value received
------ after date, ------ promise to pay to the order of
James W. Tufts ------ dollars, with interest ------. The
consideration of this and other notes is the following
described soda-water apparatus, ------, which ------ have
received of said James W. Tufts. Nevertheless it is
understood and agreed by and between ------ and the said
James W Tufts that the title to the above-mentioned property
does not pass to ------, and that until all said notes are
paid the title to the aforesaid property shall remain in the
said James W. Tufts, who shall have the right, in case of
non-payment at maturity of either of said notes, without
process of law, to enter and retake, and may enter and
retake, immediate possession of said property, wherever it
may be, and remove the same. Payable at the ------ Bank.
----------. Due ------." The apparatus was shipped to
and accepted by defendant. It was agreed
between the parties that defendant should ship to and that
the plaintiff should receive, to apply upon the purchase
price of the apparatus, a second hand Puffer soda-water
fountain, for which he was to be allowed $500 upon the
purchase price of the new fountain, and that for the balance
of $1,100 he should give his notes similar in form to that
upon the back of the said order; that on the 21st of March,
1888, the defendant executed at Kalamazoo and forwarded to
the plaintiff 44 notes, for $25 each, due at the rate of $25
per month, all being in form as follows: "$25.00.
Kalamazoo, Mich., Mch. 21, 1888. For value received, November
10, 1888, after date, I promise to pay to the order of James
W. Tufts twenty-five dollars, with interest 4 per cent. The
consideration of this and other notes is the following
described soda-water apparatus: One 24-10 R. form and fancy
Siberian Missouri, No. 687, with water attach. Three 10-gal.
seamless cop. founts, which I have received of said James W.
Tufts. Nevertheless, it is understood by and between me and
the said James W. Tufts that the title to the above-mentoned
property does not pass to me, and that until all said notes
are paid the title to the aforesaid property shall remain in
the said James W. Tufts, who shall have the right, in case of
non-payment at maturity of either of said notes, without
process of law, to enter and retake, and may enter and
retake, immediate possession of the said property, wherever
it may be, and remove the same. Payable at First Nat'l
Bank, Kalamazoo, Mich., 151 So. Burdick St. E. R.
D'ARCAMBAL. Due Nov. 10, 1888." The old apparatus
was shipped to plaintiff, and credited as agreed. Ten of the
notes were afterwards paid. Nine others had become due, and
were unpaid, and, after demand made, plaintiff took out his
writ of replevin, and obtained possession of the property.
All of the unpaid notes were in possession of
plaintiff, and were not tendered back to defendant before
the commencement of suit. The defendant, under objection and
exception, introduced evidence tending to establish the
condition and value of the apparatus replevied by the
plaintiff of defendant at the time thereof, and tending to
prove that it had not substantially depreciated in value; and
also testimony tending to show the amount of such...
