Mr. Justice Shepard
delivered the opinion of the Court:
In dealing with this contract, a court of equity, invested with the power to look beyond the mere form into the sub[198]*198stance of the instrument in order to discover its real meaning, would be strongly inclined to treat the sale of the piano as made with the reservation of a lien for the purchase money, notwithstanding the recitals that “ this is a conditional contract,” or that the “proposed sale is purely conditional.” In a case at law, involving the construction of a contract of the same general nature, it was said by the Supreme Court of the United States that the true construction “ is not to be found in any name which the parties may have given to the instrument, and not alone in any particular provisions it contains, disconnected from all others, but in the ruling intention of the parties, gathered from all the language they have used.” Herryford v. Davis, 102 U. S. 235, 244. And if this were a proceeding in equity involving the right of the vendor, not only to reclaim the instrument, but also to retain as forfeited, the payments that have been made under the contract, we should have no hesitation in construing the instrument so as to deny his light to them both.
But, in this proceeding, we must, as the trial justice evidently did, regard the right of the plaintiff to make a conditional sale, as contradistinguished from a sale with reservation of a lien that must be recorded under the statute, as settled by the Supreme Court of the United States in Harkness v. Russell, 118 U. S. 663.
The single question, then, to be decided is: Shall the proceeding in the orphans’ court to collect the balance of the purchase money be considered an election to collect a debt only, and an abandonment of the claim of title to the piano itself ?
The doctrine is well settled that where one has his choice of two inconsistent remedies, he may be put to, and made to abide, his election between them. The election, when made, with full knowledge of the situation, is irrevocable. Rabb v. Vos, 155 U. S. 13, 43. “A man may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsis[199]*199tent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him from going back and electing again.” Thompson v. Howard, 31 Mich. 309-312. In that case, the father, whose minor son had been enticed away from him by the defendant, first sued in assumpsit for the value of the son’s services. He then withdrew that suit, and brought his action for damages for enticing his son away and harboring him, which was denied him because he had made his election between his remedies by bringing the first suit, and the result was not affected by his failure to prosecute it to a final determination.
The appellant does not dispute the soundness of this doctrine of election between remedies, but denies its applicability to the facts of this case. His contention is, that both proceedings, the one in the orphans’ court and the one taken here, are in affirmance of the contract as made, and therefore not inconsistent with each other. Connihan v. Thompson, 111 Mass. 270, is cited as directly in point. In that case, the plaintiff first brought suit for damages for the breach of a contract for the purchase of land, and attached the land. He then brought an action to enforce specific performance of the contract, and discontinued the first suit. In reply to the objection that he had exercised his election between remedies, in bringing the action for the breach of the contract, the court held that there was no inconsistency between the two, “because both were in affirmance of the contract.”
Without intending either to approve the decision of that case, or to question the soundness of the distinction taken between the rule of its assertion and that laid down in Butler v. Hildreth, 5 Metc. 49, we are of the opinion that it can not be made to extend to the facts of this case. We agree with counsel that the mere demand of the balance of the purchase money, or notice of willingness to receive it, [200]*200instead of taking the piano itself, given to the vendee, or the purchaser under her, would not be regarded as the exercise of election. Such demand would be in accordance with equity and good conscience. But when the holder and claimant refused either to pay for or to ■ surrender the piano, he had two legal remedies open to his pursuit. One was to recover the unpaid balance of the purchase money of the estate of the deceased vendee. The other was to recover the property itself of the defendant.
Whilst he might, in strictness of law, under the express terms of the contract, retain the payments that had been made, without accounting therefor, and retake the property because he had not parted with the title, he certainly could not reclaim it and recover the balance due. The bringing of the suit to recover this money as due was necessarily an abandonment of his claim of title.
This view, we think, is in complete accord with the doctrine of a later case in the same court, in the opinion in which there is no reference to Connihan v. Thompson, supra, as being in opposition. The contract in that case purported to be one of hiring by A, who delivered the goods to B. B was to pay certain sums per month as rent, and the “ balance” in instalments until paid in full. Title was to remain in A and not to vest in B until all payments were made, and all conditions performed. B made default, and A sued him for the “rent” and attached his property by trustee process. Pending that suit, A took possession of the property, but prosecuted the suit to judgment. He afterwards collected a very small sum from the trustee, which was a credit on the judgment. B then sued A for the conversion of the goods, and the court held that the suit coul.d be maintained, because A, having elected to treat the transaction as a sale by his suit, the title to the goods at once passéd to B. The court said it was a misnomer to call the stipulated payments “ rent;” that B was bound by the contract, at all events, to pay for the goods, and upon the completion of the payments the title was to [201]*201vest in him, and A could not exact payment in full and take the property too. If he reclaimed the property, it must be on the ground that he elected to treat the transaction as no sale. If he brought an action for the price he thereby affirmed the sale. Bailey v. Hervey, 135 Mass. 172.
It is quite generally held that where one has parted with property through fraudulent representations, he has his option to declare it no sale and recover his goods, or to affirm the sale and recover their value ; and if he elect between his remedies, and commence proceedings, with knowledge of all the facts, he cannot afterwards, to suit his convenience or to serve his interest, withdraw therefrom and pursue the other. Butler v. Hildreth, 5 Metc. 49; Conrow v. Little, 115 N. Y. 387; Bulkley v. Morgan, 46 Conn. 393 ; Farwell v. Myers,
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Mr. Justice Shepard
delivered the opinion of the Court:
In dealing with this contract, a court of equity, invested with the power to look beyond the mere form into the sub[198]*198stance of the instrument in order to discover its real meaning, would be strongly inclined to treat the sale of the piano as made with the reservation of a lien for the purchase money, notwithstanding the recitals that “ this is a conditional contract,” or that the “proposed sale is purely conditional.” In a case at law, involving the construction of a contract of the same general nature, it was said by the Supreme Court of the United States that the true construction “ is not to be found in any name which the parties may have given to the instrument, and not alone in any particular provisions it contains, disconnected from all others, but in the ruling intention of the parties, gathered from all the language they have used.” Herryford v. Davis, 102 U. S. 235, 244. And if this were a proceeding in equity involving the right of the vendor, not only to reclaim the instrument, but also to retain as forfeited, the payments that have been made under the contract, we should have no hesitation in construing the instrument so as to deny his light to them both.
But, in this proceeding, we must, as the trial justice evidently did, regard the right of the plaintiff to make a conditional sale, as contradistinguished from a sale with reservation of a lien that must be recorded under the statute, as settled by the Supreme Court of the United States in Harkness v. Russell, 118 U. S. 663.
The single question, then, to be decided is: Shall the proceeding in the orphans’ court to collect the balance of the purchase money be considered an election to collect a debt only, and an abandonment of the claim of title to the piano itself ?
The doctrine is well settled that where one has his choice of two inconsistent remedies, he may be put to, and made to abide, his election between them. The election, when made, with full knowledge of the situation, is irrevocable. Rabb v. Vos, 155 U. S. 13, 43. “A man may not take contradictory positions; and where he has a right to choose one of two modes of redress, and the two are so inconsis[199]*199tent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him from going back and electing again.” Thompson v. Howard, 31 Mich. 309-312. In that case, the father, whose minor son had been enticed away from him by the defendant, first sued in assumpsit for the value of the son’s services. He then withdrew that suit, and brought his action for damages for enticing his son away and harboring him, which was denied him because he had made his election between his remedies by bringing the first suit, and the result was not affected by his failure to prosecute it to a final determination.
The appellant does not dispute the soundness of this doctrine of election between remedies, but denies its applicability to the facts of this case. His contention is, that both proceedings, the one in the orphans’ court and the one taken here, are in affirmance of the contract as made, and therefore not inconsistent with each other. Connihan v. Thompson, 111 Mass. 270, is cited as directly in point. In that case, the plaintiff first brought suit for damages for the breach of a contract for the purchase of land, and attached the land. He then brought an action to enforce specific performance of the contract, and discontinued the first suit. In reply to the objection that he had exercised his election between remedies, in bringing the action for the breach of the contract, the court held that there was no inconsistency between the two, “because both were in affirmance of the contract.”
Without intending either to approve the decision of that case, or to question the soundness of the distinction taken between the rule of its assertion and that laid down in Butler v. Hildreth, 5 Metc. 49, we are of the opinion that it can not be made to extend to the facts of this case. We agree with counsel that the mere demand of the balance of the purchase money, or notice of willingness to receive it, [200]*200instead of taking the piano itself, given to the vendee, or the purchaser under her, would not be regarded as the exercise of election. Such demand would be in accordance with equity and good conscience. But when the holder and claimant refused either to pay for or to ■ surrender the piano, he had two legal remedies open to his pursuit. One was to recover the unpaid balance of the purchase money of the estate of the deceased vendee. The other was to recover the property itself of the defendant.
Whilst he might, in strictness of law, under the express terms of the contract, retain the payments that had been made, without accounting therefor, and retake the property because he had not parted with the title, he certainly could not reclaim it and recover the balance due. The bringing of the suit to recover this money as due was necessarily an abandonment of his claim of title.
This view, we think, is in complete accord with the doctrine of a later case in the same court, in the opinion in which there is no reference to Connihan v. Thompson, supra, as being in opposition. The contract in that case purported to be one of hiring by A, who delivered the goods to B. B was to pay certain sums per month as rent, and the “ balance” in instalments until paid in full. Title was to remain in A and not to vest in B until all payments were made, and all conditions performed. B made default, and A sued him for the “rent” and attached his property by trustee process. Pending that suit, A took possession of the property, but prosecuted the suit to judgment. He afterwards collected a very small sum from the trustee, which was a credit on the judgment. B then sued A for the conversion of the goods, and the court held that the suit coul.d be maintained, because A, having elected to treat the transaction as a sale by his suit, the title to the goods at once passéd to B. The court said it was a misnomer to call the stipulated payments “ rent;” that B was bound by the contract, at all events, to pay for the goods, and upon the completion of the payments the title was to [201]*201vest in him, and A could not exact payment in full and take the property too. If he reclaimed the property, it must be on the ground that he elected to treat the transaction as no sale. If he brought an action for the price he thereby affirmed the sale. Bailey v. Hervey, 135 Mass. 172.
It is quite generally held that where one has parted with property through fraudulent representations, he has his option to declare it no sale and recover his goods, or to affirm the sale and recover their value ; and if he elect between his remedies, and commence proceedings, with knowledge of all the facts, he cannot afterwards, to suit his convenience or to serve his interest, withdraw therefrom and pursue the other. Butler v. Hildreth, 5 Metc. 49; Conrow v. Little, 115 N. Y. 387; Bulkley v. Morgan, 46 Conn. 393 ; Farwell v. Myers, 59 Mich. 179.
Though there is a difference in particular facts between those cases and the one at bar, the governing principle is identical. It is, that the seller cannot have his goods and the purchase price also. He must relinquish the one right or the other. If he would have his goods, he must declare that he never sold them in fact, never parted with his title, and thereby relinquish- all claim to the unpaid purchase money. If he would have payment of the purchase money, he must affirm the sale and waive the condition upon which the delivery was made.
There were some other circumstances shown in the case, which, though not called specially to the attention of the jury, point to the conclusion that plaintiff knowingly and deliberately elected to claim the purchase price of his piano rather than the instrument itself. He knew that his vendee was dead, and that the piano had passed into the possession of the collectors of her estate, pending the contest of her will. He saw the collectors, and informed them of his demand and exhibited the contract, and was told they could do nothing pending the contest of the will. He made no effort to retake his property, but stood by and let it be sold to defendant, who had no notice of any defect [202]*202in the title. Believing the estate of the deceased vendee solvent, as it apparently is, he petitioned the orphans’ court for payment of the unpaid balance of the purchase price. This petition was not denied because of the want of merit or legality in the demand, but solely because, under the laws in force in this jurisdiction, the collectors of an estate, pending an application for the probate of a will, or the grant of letters of administration, have no power beyond that of collection and preservation, and the establishment of demands against the estate must await the appointment and qualification of the regular legal representatives.
We are clearly of the opinion that the charge of the court followed the law of the case. As the evidence of plaintiff’s election was contained in his petition to the orphans’ court and other evidence offered by himself consistent therewith, the court might well have directed the jury to return a verdict for the defendant. The plaintiff, however, cannot complain that the issue was submitted to the determination of the jury. They could properly find but one verdict; any other must necessarily have been set aside.
We find no error in the record, and the judgment must be affirmed, with costs to the appellee.