SMITH v. ALDRICH

Sale, Conditional. When a purchaser under a contract of conditional sale, providing, that the title shall remain in the vendor until the payment of the last installment of the price and that he may reclaim the goods upon default, receives the goods and pays some of the instalments and then refuses to make any further payments, the vendor may at his election maintain an action for goods sold and delivered and recover the balance of the price, with interest, as stated in the contract.

The words "hired and received" and "rent" in a contract of conditional sale do not make it a lease.

LATHROP, J.

The auditor in this case found that the description of the goods, the prices for the same, and the charges for interest as contained in the account annexed to the plaintiffs' declaration, were the goods the defendant purchased of the plaintiffs and the prices and the interest she agreed to pay for and on account of them. The auditor's report was evidence in the case, and it was supported by the testimony of the plaintiffs' salesman. The first request for a ruling was therefore properly refused.

The second request was also properly refused. By the terms of the contract the defendant had agreed to pay interest as set forth in the account annexed.

The third request presents the question whether the plaintiffs could elect to treat the original contract as a contract for goods sold and delivered, without the consent of the defendant. The defendant had received the goods and had broken her contract. There had been no breach on the part of the plaintiffs, and they were entitled to the entire sum sued for. The defendant could not by an act of her own repudiate the title and diminish her obligation to pay the whole sum promised. See White v. Solomon, 164 Mass. 516, 518.

While the instrument uses the words "hired and received" and "rent," these words are misnomers, and the contract before us is to be treated as a conditional sale. Bailey v. Hervey, 135 Mass. 172. McCarthy v. Henderson, 138 Mass. 310.

The fourth request was properly refused, and the ruling of the judge as to how far the lease was competent evidence was correct.

Exceptions overruled.