Kelley Springfield Road Roller Co. v. Schlimme

Citations

• 220 Pa. 413
• 69 A. 867
• 1908 Pa. LEXIS 794

Syllabus

<p>Contract — Sale—Conditional sale — Bailment—Personal property — Alternative remedies.</p> <p>In an action upon promissory notes where it appears that defendant received from plaintiff a machine under an instrument in writing called a lease, by which the defendant was to “ pay for the use and hire ” of the machine a certain sum of money each month for a term of months, arid thereafter upon the payment of SI.00 to receive a bill of sale for the' machine, and it also appears that the plaintiff had the right upon default by the defendant to enter upon defendant’s premises and take possession of the- machine- without trespass, the plaintiff cannot, after having taken possession of the machine at the end of the term, and before any money had been paid, maintain an action against the defendant on the notes. In such a case the remedy of the plaintiff is in the alternative. He may either affirm the contract and sue on the notes, or take posses-' sion of the machine. Having elected one remedy he cannot have the benefit of the other.</p>