Loomis, J.
The sole question for our determination is, whether the promissory note described in the finding, dated January 15th, 1887, given by the Home Woolen Mills Company, payable six months after date, to Mary Crompton, administratrix (of George Crompton, deceased,) is a good and collectible note.
The commissioners on the assigned estate of the maker, now an insolvent, allowed the claim in full, and their doings were affirmed by the Superior Court upon an appeal by a creditor.
Although numerous errors are assigned as reasons for the appeal to this court, yet the controlling question as it seems to us relates wholly to the consideration of the note and the remedy of the plaintiff for default of payment.
The note in suit is a renewal of the one mentioned in the contract dated March 3d, 1886, given to George Crompton by the Home Woolen Co., pursuant to the provisions of the contract, and a determination of the questions relative to the consideration and collectibility of the note will involve also the construction of the contract.
[473]*473No question is made as to the validity of the transaction. It belongs to the class of executory conditional sales so often sustained by the courts of this and other jurisdictions, even against attaching creditors. But the question here is between the parties and those who immediately represent them.
If then, as Holt, Ch. J., so forcibly said in Thorpe v. Thorpe, 1 Salk., 171, “every man’s bargain ought to be performed as he intended it,” we cannot refrain from asking at the outset why should not the absolute promise contained in this note be performed? Was it in its inception a mere nudum pactum, lacking the requisites of a legal obligation to perform, or has there since been a failure of the consideration?
Unless it is all a mere waste of words, paper and ink, a good consideration is found in the mutual obligations which the contract imposed upon the parties. Under it the Home Woolen Co. had the possession, the right of possession, the right to use the property until default, and the right to acquire the legal title by the payment of the note. This was a vested interest of which the vendee could not be deprived except after default. Moreover it was an attachable interest under section 920 of the General Statutes. The vendee or any of its attaching creditors could compel the vendor to give a good title. In other jurisdictions the doctrine is well established that such contracts vest an interest in the vendee which is capable of sale or mortgage by him to a third person, so that the moment the vendee’s title is perfected it passes to such third person. Fosdick v. Schall, 99 U. S. R., 235; Carpenter v. Scott, 13 R. Isl., 477; Day v. Bassett, 102 Mass., 445; Crompton v. Pratt, 105 id., 255; Currier v. Knapp, 117 id., 324; Chase v. Ingalls, 122 id., 383; Note to Miller v. Steen, 89 Am. Decisions, 128.
The case at bar is most remarkable in the fact that while the appellant claims a want or failure of consideration for the note, he at the same time concedes that there has been no default in any of the vendor’s obligations mentioned in the contract, nor has possession of the looms been taken by [474]*474the vendor or his representative, nor has there been any interruption or disturbance of the vendee’s possession. But strangely enough the failure of consideration is predicated solely upon the default of the vendee to perform his own promise—-the same party who sets up the defence! That such may be the consequence of a party’s own default we concede as a possibility, but only where it is so written in the contract and such intent is manifest.
And here counsel for the appellant say in effect that the decisions of this court in Hine v. Roberts, 48 Conn., 267, and Loomis v. Bragg, 50 Conn., 228, where contracts said to be essentially the same as in the case at bar were construed so as to give the precise effect to the vendee’s own default, coupled with his act of returning the property, which we now characterize as so anomalous.
But the appellant’s argument as based on the cases cited overlooks several most important and controlling distinctions. In the first place, the court there was not called upon to give effect to the sole default and the sole act of the vendees in returning the property after default, for in both cases these acts of the vendees were coupled with the corresponding acts of the vendors in accepting and taking back the property which they had conditionally sold. This of itself constituted a failure of the consideration, and had the looms in this case when tendered been accepted and appropriated by the vendor, the vendee would be no longer liable for the purchase price. The gist of the decision in Hine v. Roberts appears in the closing paragraph of the opinion: “ The purchase failed; the title did not pass. The p.aintiff received the melodeon and the return of the organ in good condition, which is all he contracted for in that contingency, and the defendant forfeits all previous paj ments (in this case the melodeon) which is all he agreed to forfeit. There was therefore an entire failure of the consideration for the note.”
But it is said that the reasoning of the court in this, and in the other case referred to, supports the right of the vendees to return the property upon their own default, irre[475]*475speetive of any assent on the part of the vendors arising from their acceptance of the property when returned. This is true, and naturally occasions some hesitation as to the prope'r decision of this case. But the reasoning referred to was based upon a construction of those contracts whereby it was expressly provided that the vendees’ default of payment should work a forfeiture of their entire interest in the property.
In Hine v. Roberts the very words which the vendee used in his contract were—“ If I fail to pay any of said rent when due * * * all my rights herein shall thereupon expire and terminate;” which seems to justify the reasoning and conclusion of the ■ court. In Loomis v. Bragg the same construction "was given to the contract, although the language was less explicit. In the opinion of the court on page 231, it is said that the agreement provided for the contingency of a default of payment by the vendee “by & forfeiture of all the defendant's rights under the contract.”
In the case at bar, as it seems to us, no such construction can reasonably be given, for there is no express provision as in Hine v. Roberts, and none can be implied from the language used, as in Loomis v. Bragg, that the vendee can determine his interest in the property and revest it in the vendor by his own default merely. The option to give such an effect to a default rests wholly in the vendor, and the vendee’s rights continue until the option is exercised. The mere absence of any provision in the contract as to a return of the property b} the vendee, while .expressly conferring on the vendor the right to reclaim it, of itself affords ground for an implication against the existence of any such right, but in this case it is expressly stated to be the duty of the vendee “to hold the said machinery as the property of the part}’ of the first part, until the above note or renewals thereof have been fully paid according to the tenor thereof.”
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Loomis, J.
The sole question for our determination is, whether the promissory note described in the finding, dated January 15th, 1887, given by the Home Woolen Mills Company, payable six months after date, to Mary Crompton, administratrix (of George Crompton, deceased,) is a good and collectible note.
The commissioners on the assigned estate of the maker, now an insolvent, allowed the claim in full, and their doings were affirmed by the Superior Court upon an appeal by a creditor.
Although numerous errors are assigned as reasons for the appeal to this court, yet the controlling question as it seems to us relates wholly to the consideration of the note and the remedy of the plaintiff for default of payment.
The note in suit is a renewal of the one mentioned in the contract dated March 3d, 1886, given to George Crompton by the Home Woolen Co., pursuant to the provisions of the contract, and a determination of the questions relative to the consideration and collectibility of the note will involve also the construction of the contract.
[473]*473No question is made as to the validity of the transaction. It belongs to the class of executory conditional sales so often sustained by the courts of this and other jurisdictions, even against attaching creditors. But the question here is between the parties and those who immediately represent them.
If then, as Holt, Ch. J., so forcibly said in Thorpe v. Thorpe, 1 Salk., 171, “every man’s bargain ought to be performed as he intended it,” we cannot refrain from asking at the outset why should not the absolute promise contained in this note be performed? Was it in its inception a mere nudum pactum, lacking the requisites of a legal obligation to perform, or has there since been a failure of the consideration?
Unless it is all a mere waste of words, paper and ink, a good consideration is found in the mutual obligations which the contract imposed upon the parties. Under it the Home Woolen Co. had the possession, the right of possession, the right to use the property until default, and the right to acquire the legal title by the payment of the note. This was a vested interest of which the vendee could not be deprived except after default. Moreover it was an attachable interest under section 920 of the General Statutes. The vendee or any of its attaching creditors could compel the vendor to give a good title. In other jurisdictions the doctrine is well established that such contracts vest an interest in the vendee which is capable of sale or mortgage by him to a third person, so that the moment the vendee’s title is perfected it passes to such third person. Fosdick v. Schall, 99 U. S. R., 235; Carpenter v. Scott, 13 R. Isl., 477; Day v. Bassett, 102 Mass., 445; Crompton v. Pratt, 105 id., 255; Currier v. Knapp, 117 id., 324; Chase v. Ingalls, 122 id., 383; Note to Miller v. Steen, 89 Am. Decisions, 128.
The case at bar is most remarkable in the fact that while the appellant claims a want or failure of consideration for the note, he at the same time concedes that there has been no default in any of the vendor’s obligations mentioned in the contract, nor has possession of the looms been taken by [474]*474the vendor or his representative, nor has there been any interruption or disturbance of the vendee’s possession. But strangely enough the failure of consideration is predicated solely upon the default of the vendee to perform his own promise—-the same party who sets up the defence! That such may be the consequence of a party’s own default we concede as a possibility, but only where it is so written in the contract and such intent is manifest.
And here counsel for the appellant say in effect that the decisions of this court in Hine v. Roberts, 48 Conn., 267, and Loomis v. Bragg, 50 Conn., 228, where contracts said to be essentially the same as in the case at bar were construed so as to give the precise effect to the vendee’s own default, coupled with his act of returning the property, which we now characterize as so anomalous.
But the appellant’s argument as based on the cases cited overlooks several most important and controlling distinctions. In the first place, the court there was not called upon to give effect to the sole default and the sole act of the vendees in returning the property after default, for in both cases these acts of the vendees were coupled with the corresponding acts of the vendors in accepting and taking back the property which they had conditionally sold. This of itself constituted a failure of the consideration, and had the looms in this case when tendered been accepted and appropriated by the vendor, the vendee would be no longer liable for the purchase price. The gist of the decision in Hine v. Roberts appears in the closing paragraph of the opinion: “ The purchase failed; the title did not pass. The p.aintiff received the melodeon and the return of the organ in good condition, which is all he contracted for in that contingency, and the defendant forfeits all previous paj ments (in this case the melodeon) which is all he agreed to forfeit. There was therefore an entire failure of the consideration for the note.”
But it is said that the reasoning of the court in this, and in the other case referred to, supports the right of the vendees to return the property upon their own default, irre[475]*475speetive of any assent on the part of the vendors arising from their acceptance of the property when returned. This is true, and naturally occasions some hesitation as to the prope'r decision of this case. But the reasoning referred to was based upon a construction of those contracts whereby it was expressly provided that the vendees’ default of payment should work a forfeiture of their entire interest in the property.
In Hine v. Roberts the very words which the vendee used in his contract were—“ If I fail to pay any of said rent when due * * * all my rights herein shall thereupon expire and terminate;” which seems to justify the reasoning and conclusion of the ■ court. In Loomis v. Bragg the same construction "was given to the contract, although the language was less explicit. In the opinion of the court on page 231, it is said that the agreement provided for the contingency of a default of payment by the vendee “by & forfeiture of all the defendant's rights under the contract.”
In the case at bar, as it seems to us, no such construction can reasonably be given, for there is no express provision as in Hine v. Roberts, and none can be implied from the language used, as in Loomis v. Bragg, that the vendee can determine his interest in the property and revest it in the vendor by his own default merely. The option to give such an effect to a default rests wholly in the vendor, and the vendee’s rights continue until the option is exercised. The mere absence of any provision in the contract as to a return of the property b} the vendee, while .expressly conferring on the vendor the right to reclaim it, of itself affords ground for an implication against the existence of any such right, but in this case it is expressly stated to be the duty of the vendee “to hold the said machinery as the property of the part}’ of the first part, until the above note or renewals thereof have been fully paid according to the tenor thereof.”
This case belongs to the class of which Appleton v. Norwalk Library Corporation, 53 Conn., 8, is the type rather than to that of Hine v. Roberts and Loomis v. Bragg, and [476]*476the language of the court in that case in reference to the claim of a right in the defendant to return books similarly bought, is equally applicable to this ease. The court there say:—“It is said that the plaintiffs had the right, at- their option, to retake the property at any time if the defendants should fail to pay any installment for a period of thirty days after it became due. But this is a right which the plaintiffs had in case the defendants should break the contract by non-payment. It gives the defendants no right to return the books.”
But it is suggested that the present case is like Hine v. Roberts and Loomis v. Bragg in that no remedy except the right to resume possession is given to the vendor, and that it is unlike Appleton v. Norwalk Library Corporation in that there is no absolute promise to pay for the looms, as there was to pay for the books in that case. While we concede that there is some plausible ground for these distinctions, upon further reflection we find them unsatisfactory. In the first two cases the payments stipulated to be made at frequent intervals were called rent and the agreements were called leases, and although this court, taking into .view the features of the entire transactions, called them conditional sales and not leases, yet the use of these words by the parties certainly has a legitimate bearing upon the construction of the agreements as to the point now under consideration, namely, whether the parties intended to give the vendors a remedy to recover the entire sum stipulated to be paid as a condition for vesting the title in the vendees.
In both cases also we find most ample provisions for the protection of the vendors. In Hine v. Roberts a large advance payment was made by delivery to the vendor of a melodeon, worth nearly one third the price of the organ. In Loomis v. Bragg the payment of a monthly rent was required, many times larger than the interest upon the full price of the piano which was the subject of the sale.
But in the case at bar the contract requires no advance payment and no rent or instalments are to be paid either at long or short intervals. The word “ rent ” does not occur [477]*477in the writing and its equivalent in idea only appears where it speaks of the consequences of a retaking of possession by the vendor, and provides for the cancellation of the notes, in which case any payments that’may have been made it is said “ shall be for the use of the machinery while the vendee was in possession.” Even interest is not mentioned in the agreement, yet the finding shows that it was in fact paid in advance upon giving the present renewal note, and upon the supposition that the entire note could be collected when due the vendor had it in his power always to secure the prepayment of interest or any other security as a condition for granting a renewal of the note. But the first note that was given pursuant to the contract had the interest included with the principal, which was due at the end of eight months, so that, had the question under discussion then arisen, the appellant could have claimed, consistently with his present position, that not even the interest was recoverable, for its payment was only obligatory as part and parcel of the principal, which could not, he says, have been recovered by suit. But if the interest could have been or could be recovered apart from the principal it would be a very inadequate protection to the vendor for the risk and deterioration incident to the use of such machinery by another. As matter of common knowledge we may safely assume that the property in question, if subjected to only ordinary wear, would, if taken back by the vendor, necessarily be greatly depreciated in its market valué, for it would have to be sold again, if at all, as second-hand machinery, and the vendor must inevitably lose the whole difference between the value of new and of second-hand machinery, which in an investment of over twelve thousand dollars, as in this case, would be too serious a matter to be lost sight of in the contemplation of the parties. The appellant’s construction of the agreement would put upon the vendor all the risks and losses, (of which there are many besides those mentioned,") incident to the agreement and its subject matter, and at the same time give to the vendee all possible benefits, while exempting him from all obligations except such as he might be well pleased to [478]*478fulfil. It is incredible that a contract so one-sided, and a remedy so inadequate for the vendor, should have been intended by the parties.
Any construction leading to such results ought not to be accepted unless plainly required or necessarily to be inferred from the language of the contract. We think the contract in this case admits of a different and more reasonable construction.
We have already seen that no option to return the property is given to the vendee merely upon his own default, which has an important bearing upon the questions whether the parties have restricted the remedy of the vendor solely to a retaking of the property, and whether there was any promise by the vendee to pay the purchase price. We have also adverted to the provision that the vendee shall hold the. property as that of the vendor until the note audits renewals have been fully paid, which indicates that actual payment was contemplated; and we have in addition the note itself, which contains a direct promise, without condition of contingency’, to pay the purchase price of the looms; and this note being provided for in the contract and made part and parcel of it, ought to be read as if inserted in the body of the contract. All these considerations make it reasonable to construe the agreement as containing an absolute promise to pay’ for the property at the expiration of the eight months credit agreed upon. And this brings the case within the principle of Appleton v. Norwalk Library Corporation, where this court said:—“This contract is an absolute one. The plaintiffs agreed to sell the books to the defendants for the sum of ninety dollars, to be paid in instalments at certain specified times. The defendants agreed to pay that sum according to the terms of the contract. There is no conditional agreement here. It is true that the title to the goods did not pass, and could not pass until the full sum of ninety dollars had been paid, but the promise to pay that sum was absolute. Whence then comes the defendant’s right to return the books in full satisfaction and discharge of the contract, and thus leave a great part of the instalments [479]*479unpaid?” And speaking of the plaintiffs’ right to recover possession of the books, the court further says :—“ But this is not their only remedy. The contract expressly further provides that in case of such breach all the remaining unpaid instalments shall immediately become due and payable. If they become due and payable in consequence of nonpayment, of course a suit could be maintained for their recovery.”
Another question involved in the reasons for the appeal, and very briefly referred to in the argument for the appellant, is, whether the appellee, by bringing a suit on the note and attaching the property of the vendee thereon, and by refusing to accept the property when tendered back, and by presenting the note to the commissioners as a claim against the estate of the vendee, thereby affirmed the sale and waived her right to recover back the property.
The counsel for the appellee insisted that this question was not properly before this court and declined to argue it. It is true this suit is not for the recovery of the machinery, but only for the recovery of the amount of the note. The vendee has not been disturbed in his possession of the property and it is not certain that he will be. But the facts referred to as to the conduct of the appellee all appear on the record, and so far as they affect the right to recover the note now in question the matter is legitimately before the court. And although our present decision must be confined to the claim on the note, yet the note and the propert}’ may have such relations as that the principle established as to the former may virtually determine the question as to the property, should it hereafter arise. The controlling question in the present case, as we have seen, relates simply to the consideration of the note.
If then the action of the plaintiff, as found in this case, had the effect to affirm the sale and pass the title of the property to the vendee, at the same time it must have prevented a failure of the consideration of the note, and if the title did pass it follows also that the plaintiff cannot recover the property in any suit founded upon the contract. For [480]*480these reasons we regret that the question was not fully argued.
The case of Bailey v. Hervey, 135 Mass., 172, was cited, and as it was based on a contract similar .in effect to the one under consideration, it seems to be directly in point. The action was brought by the conditional vendee against the vendors for taking the property away, and the defendants attempted to justify under their contract after default of payment was made by the vendee. Allen, J., in delivering the opinion of the court said: “ When the plaintiff discontinued his payments on account, what was the legal position of the defendants? If it be assumed that they might at their option either reclaim the goods as their own property, without any obligation to account for the proceeds or value to the plaintiff, or that they might collect the price in full, it is plain that they were not entitled to do both. They could not treat the transaction as a valid sale and an invalid one at the same time. If they reclaimed their property, it must be on the ground that they elected to treat the transaction as no sale. If they brought an action for the price they would thereby affirm it as a sale. Two inconsistent courses being open to them, they must elect which they would pursue; and electing one they are debarred from the other. Reclaiming the goods would show an election to forego the right to recover the price. But instead of reclaiming the goods in the first instance, they brought an action against Bailey for the price, made an attachment of his property by, trustee process, entered their action in court, and he was defaulted.”
To accept this as good law would be to establish a principle which would, upon the facts found, preclude the appellee from hereafter reclaiming the machinery in question. And while we feel impressed with the clear and cogent reasoning contained in the opinion cited, and are aware that it may receive further support from other decisions to the same effect, yet inasmuch as the point was not argued at all by the appellee and only briefly for the appellant, and as its adoption would only furnish one independent additional reason [481]*481for a conclusion already reached by a majority of the court, it is deemed best on the whole to leave the question open for further consideration and decision after full argument.
There was no error in the judgment complained of.
In this opinion Akbbews, C. J., Pabeee and Fenb, Js., concurred.