W. W. Bierce Ltd. v. Hutchins

OPINION OF THE COURT BY

FREAR, C.J.

This is a petition for a rehearing of the case decided ante, page 118. The action is replevin for rails, cars, etc., claimed to have been sold by the plaintiff on the condition that title should remain in it until payment. The court held that even if title were to remain in the plaintiff until payment still the plaintiff could not maintain replevin, which is based on the theory that the title was in it, for the reason that it had pre viously elected an inconsistent right by bringing an action for the price and to enforce a materialman’s lien, which was based,…