Estoppelconsent to action by vendee.

This instruction is faulty in this: The mere fact that plaintiff became aware of the pendency of the suit by Massi and agreed that Massi should prosecute the action against the railway company is not of itself sufficient to bar a right of recovery on the part of plaintiff. If the instruction had told the jury that if plaintiff had agreed that Massi should prosecute the action against the railway company for the benefit of plaintiff and himself, or if the jury had found as a fact under the court's instructions that there was a settlement arrived at between plaintiff and Massi by the giving and receipt of the order upon Nolan & Donovan which made Massi the owner of the automobile, then the instruction would have been warranted upon the facts, and it would have stated the law correctly.

As the cause must go back for a new trial, we call attention to instructions 4, 6, and 13. These instructions, taken in connection with others, are predicated upon the proposition that, if the defendant was negligent, yet, if Massi was guilty of contributory negligence, the plaintiff could not recover. It is now pretty well settled that the negligence of a buyer under a condition

Negligence

effect of negligence of consti

tutional vendee.

al sales agreement is not chargeable to the seller. In the note to Lloyd V. Northern P. R. Co. 6 A.L.R. 307, it is said: "But at this time the weight of authority is decidedly in favor of the rule that in bailments other than for carriage the contributory negligence of the bailee is not imputable to the bailor where the subject of the bailment is damaged by a third person."

See also 1 Thomp. Neg. § 512; Morgan County v. Payne, 207 Ala. 674, 30 L.R.A. 1243, 93 So. 628; Norton v. Hines, 211 Mo. App. 438, 245 S. W. 346; Virginia R. & Power Co. v. Gorsuch, 120 Va. 655, 91 S. E. 632, Ann. Cas. 1918B, 838; Spelman v. Delano, 177 Mo. App. 28, 163 S. W. 300; Gibson v. Bessemer & L. E. R. Co. 226 Pa. 198, 27 L.R.A. (N.S.) 690, 75 Atl. 194, 18 Ann. Cas. 535.

The verdict in this case was for $1,000. Even if the jury had been correctly instructed, the verdict should not have been for a sum in excess of $666.44, with such interest as the statute allows.

The judgment is reversed, and the cause is remanded for a new trial. All concur.

Petition for rehearing denied May 8, 1924.

Scope.

As to the question, who bears loss incident to destruction of goods sold conditionally, see annotation following Holt Mfg. Co. v. Jaussaud, ante, 1319.

In discussing the right of a conditional vendor or vendee to recover from a third person for damage to or the destruction of the subject-matter of the sale, this annotation excludes cases involving the conversion of the property, or the taking thereof from the vendee in legal proceedings.

Recovery by vendee.

It is apparently well settled that a conditional vendee in possession has sufficient interest in the goods to recover from a third person for damage thereto or the destruction thereof.

Alabama. Louisville & N. R. Co. v. Duncan (1918) 16 Ala. App. 520, 70 So. 513; Bradley v. Wood (1922) 207 Ala. 602, 93 So. 534; Smith v. Louisville & N. R. Co. (1922) 208 Ala. 440, 94 So. 489; Louisville & N. R. Co. v. Miller (1923) 209 Ala. 378, 96 So. 322.

Washington.

Tennessee. Carolina C. & O. R. Co. v. Unaka Springs Lumber Co. (1914) 130 Tenn. 354, 170 S. W. 591. Stotts v. Puget Sound Traction, Light & P. Co. (1917) 94 Wash. 339, L.R.A.1917D, 214, 162 Pac. 519; Oros v. Allen (1925) Wash., 233 Pac. 314.

Compare Peterson v. Chess (1916) 92 Wash. 682, 159 Pac. 894.

Thus, it has been held in Indiana that a purchaser of an automobile under a conditional sales contract, having paid part of the sale price and being in possession of the property, may sue for injury thereto by a third person. Craig v. Lee (Ind.) supra. In that case it appeared that the plaintiff had paid down $300 and still owed $400 on a car purchased under a conditional sales contract, when the car was wrecked by reason of the negligence of the defendant in turning to the left without warning when the plaintiff was about to overtake and pass him. The court approved the following instruction of the trial judge: "It is the law that in case of an injury to a motor vehicle sold under a conditional contract of sale, that the vendee having possession of said car, who would be the plaintiff herein, has the right to maintain an action against a third person for the injuries to the machine.”

In Smith v. Gufford (Fla.) supra, it was held that a conditional vendee

in possession of a horse could maintain an action for damages against a railroad company for its negligent killing. The court said that either the vendor or conditional vendee could maintain the action, the former because of his retention of legal ownership, and the latter because of his special ownership, and that recovery by either would be a bar to further recovery by the other.

To a similar effect is Carolina, C. & O. R. Co. v. Unaka Springs Lumber Co. (Tenn.) supra, wherein it was held that a conditional vendee in possession of personal property could maintain an action against a railroad company for its negligent destruction of the property by fire, and the court stated, as in the preceding case, that either the vendor or the conditional vendee had a right to sue, the former because of his retained title, which he held as security for the unpaid purchase price, and the conditional vendee because of his possession and special or equitable ownership; but that a recovery by one would be a bar to a recovery by the other. The court said: "If the suit is brought by the conditional vendee, as in the present case, he is entitled to recover the full value of the property, and he will hold the balance beyond his own interest-that is, the amount due the vendor on the purchase price in trust for the vendor."

A vendee in possession of personal property can maintain an action against a third party for its negligent injury, although at the time of the injury the title is retained by the vendor as security for the unpaid purchase money; especially where the vendee has paid the remainder of the purchase price before bringing the action. Emanuel County v. Thompson (Ga.) supra, citing Brown Store Co. v. Chattahoochee Lumber Co. (1905) 121 Ga. 809, 49 S. E. 839.

In Louisville & N. R. Co. v. Duncan (1918) 16 Ala. App. 520, 79 So. 513, it was held that a conditional vendee of household furnishings could recover their full value from the defendant railroad for their destruction by fire, due to blocking un

reasonably the fire trucks at a public crossing for a period of four and a half minutes.

The reported case (LACEY v. GREAT NORTHERN R. Co. ante, 1331) holds that the conditional vendee of an automobile, being obligated to pay the seller the full price and having the right of possession, has a right to maintain an action against a third person for damage to the property, and may recover up to the full value thereof.

It appeared in Carter v. Black & W. Cab. Co. (1918) 102 Misc. 680, 169 N. Y. Supp. 441, that the plaintiff was in possession of an automobile under a conditional sale agreement, and owed the sum of $88 secured by a promissory note. In an action to recover for damage to the car the court held that the plaintiff, as conditional vendee, was analogous to a bailee, and had a right to recover from a third person for damage to the property.

In Miller v. Des Moines City R. Co. (1923) 196 Iowa, 1033, 195 N. W. 600, it was held that a conditional vendee of a motor truck, so long as he retained any interest therein, was entitled to maintain action for damages to it by another.

Similarly, where a horse and wagon. owned under a conditional sale were injured, due to wanton conduct of a railroad employee causing the horse to run away, it was held that the conditional vendee had sufficient interest in the property to maintain an action for damages. Bradley v. Wood (1922) 207 Ala. 602, 93 So. 534.

It was held in Dyer v. Great Northern R. Co. (1892) 51 Minn. 345, 38 Am. St. Rep. 506, 53 N. W. 714, that a conditional vendee of a piano, as consignee, had a right to enter into a settlement with a public carrier for loss of the property by fire during transit.

In Smith v. Louisville & N. R. Co. (1922) 208 Ala. 440, 94 So. 489, the court held that the person in possession, whether vendor or vendee, of a chattel sold conditionally, had the the right to recover for damages thereto by a third person.

It was said by way of dictum in Louisville & N. R. Co. v. Miller (1923)

209 Ala. 378, 96 So. 322, that until default in payment a conditional vendee in rightful possession of a chattel may maintain trespass for wrongful injury thereto by a third person.

The court in Stotts v. Puget Sound Traction, Light & P. Co. (1917) 94 Wash. 339, L.R.A.1917D, 214, 162 Pac. 519, held that a conditional vendee in possession of a motor truck had a cause of action against a street railway for damages due to the negligence of the motorman. The court adopted the view that a conditional vendee, as against third parties, stood in the position of a bailee, and had sufficient interest in the chattel on which to base a cause of action for its loss or injury. The court said: "The right of the vendee, as against third parties, may well be likened to that of a bailee, and we see no reason why the same rules should not apply, especially when we consider the several statutes relied on by defendant. The law seems to be well settled that the bailee of personal property may recover compensation for any conversion of or any injury to the article bailed while in his possession.' The theory of the law being that, the bailee being bound to restore the property or to answer for its value, the action is maintained for the benefit of the bailor, and bars a subsequent action by him. We think the analogy is complete. While having no element of title, the conditional sales vendee is bound to keep the property secure and to pay its value to the vendor. The quantum of title is the same in the vendor as in the bailor, and the want of title is the same in the vendee as in the bailee. The liability of the trespasser is the same, his only concern being that he shall not be put to the hazard of two recoveries."

. .

Similarly, in Oros v. Allen (1925)

Wash. —, 233 Pac. 314, it was held that the purchaser of an auomobile under a conditional sale contract was entitled to sue a third person for damages thereto, and recover the difference between the market value of the car before and after the accident.

The case of Peterson v. Chess

(1916) 92 Wash. 682, 159 Pac. 894, in holding that a a conditional vendee could not maintain an action for negligent injury to a motorcycle, was apparently based on the ground that after the accident the owner took possession, asserting the right to do so under a broken condition for payment, and at the time the suit was brought and at the time of the trial it did not appear that the vendee had any interest in the property.

Recovery by vendor.

It has been held that a conditional vendor, as owner of the legal title, may sue and recover from a third person who damages or destroys the subject-matter of the sale. Smith v. Louisville & N. R. Co. (1922) 208 Ala. 440, 94 So. 489; Smith v. Gufford (1895) 36 Fla. 481, 51 Am. St. Rep. 37, 18 So. 717; Ryals v. Seaboard Air-Line R. Co (1924) 158 Ga. 303, 123 S. E. 12; Carolina C. & O. R. Co. v. Unaka Springs Lumber Co. (1914) 130 Tenn. 354, 170 S. W. 591; United Iron Works v. Hurley Mason Co. (1912) 71 Wash. 275, 128 Pac. 209. And see the reported case (LACEY V. GREAT NORTHERN R. Co. ante, 1331). Compare Louisville & N. R. Co. v. Miller (1923) 209 Ala. 378, 96 So. 322.

Thus, in Ryals v. Seaboard Air-Line R. Co. (1924) 158 Ga. 303, 123 S. E. 12, wherein it appeared that one of the defendant's trains negligently struck and destroyed an automobile which had been conditionally sold by the plaintiff, it was held that the vendor, as owner of the legal title, had a right to bring action for damage sustained, not exceeding the purchase price.

In United Iron Works V. Hurley Mason Co. (1912) 71 Wash. 275,

128 Pac. 209, the court held that a conditional vendor could recover from a third person for converting and wearing out hoisting engines and concrete mixers which had been sold conditionally to one of the defendant's defaulting subcontractors.

It is held in the reported case (LACEY V. GREAT NORTHERN R. Co. ante, 1331) that a conditional vendor of an automobile has a right to maintain an action against a third person for damage to the car through negligence, but is limited in his recovery to the unpaid balance due, and not exceeding the value of the car.

In Louisville & N. R. Co. v. Miller (1923) 209 Ala. 378, 96 So. 322, an action of trespass by the conditional vendor of a mare for damages for its killing by a railroad employee, the holding was to the effect that while the vendee was in rightful possession, and not in default of payments, the vendor was not entitled to maintain the action for damages. The court maintained that the gist of the action was injury done to the possession, and that the vendor not in possession, and not having the right to repossession by default, had no basis for the action.

Recovery by one party as bar to recovery by other.

It seems that a recovery by one party for injury to or loss of property conditionally sold is a bar to a recovery by the other. Smith v. Gufford (1895) 36 Fla. 481, 51 Am. St. Rep. 37, 18 So. 717; Carolina, C. & O. R. Co. v. Unaka Springs Lumber Co. (1914) 130 Tenn. 354, 170 S. W. 591. See also Stotts v. Puget Sound Traction, Light & P. Co. (1917) 94 Wash. 339, L.R.A. 1917D, 214, 162 Pac. 519. R. E. LaG.