#### Seaver E. Smeby, Defendant in Error, v. Lorenz Grupczynski, Plaintiff in Error.

Gen. No. 19,641.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed May 19, 1914.

Rehearing denied June 2, 1914.

Statement of the Case.

Replevin by Seaver E. Smeby against Lorenz Grop*34czynski to recover possession of certain articles of personal property. The court found the right of property in plaintiff and entered judgment upon the finding, damages being fixed at one cent. To reverse the judgment, defendant brings error.

Abstract of the Decision.

Sales, § 422 * —when contract is one of conditional sale. A written contract providing that if the party of the second part would make payments and perform certain covenants on his part, the party of the first part would sell and transfer certain personal property, *35 held to constitute a contract of conditional sale entitling the party of the first part to repossess himself of the property, where payments had not been made under its terms, the interest of no third party having intervened.

*34The parties had entered into a contract in which the plaintiff was referred to as party of the first part and the defendant as party of the second part, for the sale of certain real estate and personal property, including' the property recovered in the present proceeding, consisting of a horse, cash register, etc. The contract referred to reads: ‘ That if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part” certain described real estate. Then follows: “and to sell and transfer one cash register,” etc. The defendant assigned his interest in the contract to one Brabanski except as to a portion of the personal property. The terms of the contract were not complied with by Brabanski or the defendant as to making payments, and plaintiff after recovering possession of the real estate and personal property obtained by Brabanski began this suit to recover the personal property retained by the defendant.

C. E. Heckler, for plaintiff in error.

George Frantzen, for defendant in error.

*

See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Clark

delivered the opinion of the court.