Clemmitt v. Miehle Printing Press & Manufacturing Co.

Urner, J., delivered the opinion of the Oourt. In December, 1912, the appellant bought two printing-presses from the appellee corporation for the sum of $3,600. The presses were delivered to the appellant and installed at his printing office some time in February, 1913. Subsequently by a chattel mortgage, dated February 28, 1913, the title to the two presses was conveyed to1 the appellee to secure a balance of $3,100 owing on the purchase price.

The amount thus secured was represented by twenty-four promissory notes of $75 each and one of $1,300, all bearing the same date as the chattel mortgage and maturing at various periods ranging from one to twenty-four months. All of the notes had matured by February 28, 1915, but at that time only twelve of the seventy-five dollar notes had been paid. Upon the remaining notes, aggregrating $2,200, payments were made during the next three years to the total amount of $500. On February, 13, 1918, there was due the appellee, on account of the indebtedness secured by the chattel mortgage, the sum of $1,700 as principal and $609 as interest.

A written demand was then made upon the appellant by the appellee for the delivery of the printing presses, under the terms of the mortgage, and this was followed promptly by the pending action of replevin. The appeal is from a judgment in favor of the appellee’s right to the possession of the property seized under the writ. ³⁸⁷ The only exception in the record relates to the refusal of three prayers offered by the defendant. One of the questions raised by the prayers is whether the right of the mortgagee to recover possession of the mortgaged chattels was waived by the acceptance of partial payments on the mortgage debt after maturity. It was provided by the chattel mortgage that the appellant should have the right to retain possession of the printing presses therein described unless default were made in any of the payments specified, and it was covenanted that in case of any such default, or if the mortgagee should feel insecure' or fear diminution, removal or waste of the property, or if any writ or distress warrant should be levied thereon, then, in any such event, all of the notes secured by the mortgage should, at the option of the mortgagee, without notice, become at once due and payable:, and the mortgagee should thereupon have the right to take immediate possession of the mortgaged property and dispose of it at public or private sale, applying the proceeds to the satisfaction of the unpaid mortgage indebtedness and paying the surplus to the mortgagor.

The argument that the® acceptance of sums in part payment of the mortgage notes after their maturity constituted a waiver of the mortgagee’s right to take possession of the designated chattels after default is based upon the theory that the instrument to which we have referred, while a mortgage in form and self-description, may be regarded as having the effect of a conditional sale. In the case of such a contract, where the right is reserved to' the vendor, at his option, to annul the transaction and retake the goods sold, in default of the payment of any installment of the price, without refunding any sums paid by the vendee, it has been held that an acceptance of a payment, or a promise of further indulgence, after the default has occurred, is a waiver of the right to declare and enforce the forfeiture. Cole v. Hines, 81 Md. 476 . The effort is made to apply that principle to the present controversy, but in our opinion it is clearly in ³⁸⁸ applicable.

Tbe right here asserted by the plaintiff does not involve a rescission of the contract between the parties and the forfeiture of all the defendant’s