Per curiam:

This action was instituted by the plaintiff to recover for an injury to an Essex automobile the sum of $1,300, because of the alleged negligent operation of a train over the railroad tracks of the defendant company in the city of Butte. The cause was tried to a jury which rendered a verdict in plaintiff's favor for $1,000. Judgment was entered upon the verdict, and the appeal is from the judgment.

It appears that on the 6th day of August, 1920, the plaintiff sold to Louis Massi the automobile at the agreed price of $1,593.29, upon a conditional sale contract which was filed for record in the office of the county clerk of Silver Bow county on the next day. By the terms of the agreement Massi paid $650 to plaintiff upon the signing thereof, receipt of which was acknowledged. The balance payable was $943.29 as follows: $104.81 one month after date, and a like amount in two, three, four, five, six, seven, eight, and nine months. Possession of the automobile was delivered to the purchaser, who agreed not to sell, attempt to sell, or otherwise dispose of the same, nor to permit it to be removed from his possession. In ¶ 9 of the agreement it was "distinctly understood and agreed that, should said purchaser fail to make any of the said payments to said seller, or should said purchaser fail to perform any of the terms or conditions thereof in the manner and within the time herein provided for, said seller may declare the entire purchase price due and payable without notice, and may take immediate possession of said automobile, attachments, accessories, and equipment, and in either or both events all the rights, titles, and equities of said purchaser in and to said automobile shall immediately cease and determine, and said seller shall be released from all obligation to transfer or deliver said automobile to said purchaser, and all sums of money theretofore paid by said pur

chaser to said seller hereunder shall remain the sole property of said seller, and shall be considered as compensation for the use of said automobile by said purchaser."

From the evidence it is clear that at the time of the accident Massi, the purchaser, was in the actual physical possession of the automobile; also that plaintiff had not declared a forfeiture, nor is there any evidence that he intended to do so. And it appears that plaintiff never took possession or asserted the right of possession of the automobile after its delivery to Massi until after the accident.

On November 17, 1920, Massi began suit against the railway company for the sum of $1,985 on account of damages to this automobile. While the suit was pending, plaintiff, then knowing that Massi was maintaining the suit, had two conversations with L. P. Donovan, one of Massi's attorneys in the case, as he, plaintiff, "wanted some arrangements made for his protection," according to Mr. Donovan's testimony. The result was that Massi, in the presence of plaintiff, gave to Nolan & Donovan an order in writing for $666.44, being the amount then due him from Massi upon the purchase price of the automobile. Subsequently the case of Massi against the railway company was settled; the defendant company paying to Messrs. Nolan & Donovan, as Massi's attorneys, the sum of $800, which, after deducting their fees, they turned over to Massi.

The first question which presents itself is whether in view of the foregoing facts the plaintiff has a right to maintain this action.

Sale-conditional

Whether Massi had made all of the payments required of him, a subject somewhat doubtful upon the effect of fail. record, it is clear ure to make that plaintiff had not declared a forfeiture. The mere failure of a conditional vendee to make his payments on time does not change the status of the par

payment.

cise of the forfeiture by clause in the

-effect of clause permitting recovery of possession.

ties in the absence of an exeroption to declare a the vendor. The contract allowing allowing the vendor to retake the property is not operative in the absence of affirmative action on his part. See Wheeler & W. Mfg. Co. v. Teetzlaff, 53 Wis. 211, 10 N. W. 155; Leaf v. Reynolds, 34 Idaho, 643, 203 Pac. 458; Teter v. Thompson, 57 Cal. App. 329, 207 Pac. 260. It follows that at the time of the accident Massi had the legal right to the possession of the automobile. That as conditional vendee he had the right to maintain his action is beyond question. 24 R. C. L. 496.

-who bears risk of injury.

The

The law applicable to seller and buyer under a conditional sale contract is well settled. The risk of loss or injury to the chattel from a third person falls upon the buyer in possession, who has the beneficial incidents of title. The seller is under no obligation to reclaim or retake the damaged chattel; he has done all he was to do, except to receive payment of the purchase price. purchaser has received all that he was to receive as the consideration of his promise to pay. Consequently, the seller is allowed to recover from the buyer the -effect of injury full price due, less instalments The conditional vendor has a right paid. of action for damages upon the object of the sale whether the tortfeasor be the conditional vendee or a third person. But the measure of the vendor's damages in such case is only the amount of the price unpaid, not, however, exceeding the value of the goods. Williston, Sales, § 333; Elder v. Woodruff Hardware & Mfg. Co. 9 Ga. App. 484, 71 S. E. 806; Higdon v. Garrett, 163 Ala. 285, 50 So. 323; Loughlin v. Brassil, 187 N. Y. 128, 79 N. E. 854. The conditional buyer having the risk, and

to property.

of conditional

being obligated to pay the full price to the seller, may bring action against Parties-right the tort-feasor and vendee to rerecover as damages to property. cover for injury the full value of the chattel. Williston, Contr. § 965; Williston, Sales, §§ 304, 333.

There is no doubt that with plaintiff's knowledge and express consent Massi was free to pursue his action against the defendant for a recovery of all the damages following from the alleged tort. Massi's obligation fruits of the litigation to the extent was then to pay to plaintiff the of the amount due on the contract; but whether the order given by Massi on Nolan & Donovan was received and accepted by plaintiff in full settlement of the amount due him may not be determined upon this record. It is fair to infer that, if Massi did not re

the

conditional

cover from the rail- Payment-order on third person. way company, his charged by the order. It is also pósdebt to plaintiff would not be dissible to infer from the record that plaintiff simply took the order as additional security for the amount due him from Massi; he had reserved title in himself as security. having but $200 salvage value. The The automobile had been destroyed; plaintiff had right to sue the rail- Parties-right of way company for vendor to rethe amount of the to property. due him. Whether the plaintiff acpurchase price still cepted the order in full settlement of the amount due him, and, as a consequence thereof, whether he was estopped from suing the railway company, was a question which should have been ance of order submitted to the jury for their determination, under proper instructions.

cover for injury

Trial-question for jury-acceptin settlement.

tiff so accepted it, that would have constituted payment as much as though Massi had executed his promissory note to plaintiff and plaintiff had accepted it in settlement of the balance due. Valley Mercantile Co. v. Bailey, 68 Mont. 79, 216 Pac. 789. That would have conferred upon Massi the full right of ownership of the property for the purpose of his action against the defendant, and, under those circumstances, plaintiff would have become barred of his independent right of recovery from the defendant. 24 R. C. L. 476; Carolina, C. & O. R. Co. v. Unaka Springs Lumber Co. 130 Tenn. 354, 170 S. W. 591; Smith v. Gufford, 36 Fla. 481, 51 Am. St. Rep. 37, 18 So. 717; Lord v. Buchanan, 69 Vt. 320, 60 Am. St. Rep. 933, 37 Atl. 1048; Logan v. Wabash Western R. Co. 43 Mo. App. 71.

It is well to note here that it cannot be determined from the record whether the amount paid Massi by the defendant company was the full value of the automobile at the time of the accident.

In this condition of the record the court gave instruction No. 14, which reads as follows: "You are instructed that, if you find from the evidence that the plaintiff in this action transferred the possession of the automobile to Louis Massi under a conditional sales contract, and that at the time of the accident Massi was in such possession and had the right to the legal possession of the car, and that Massi thereafter and following the accident made a settlement with the defendant for damages to the automobile from the collision mentioned, then you are instructed that the settlement made by Massi is binding upon the plaintiff, and the plaintiff cannot recover, and your verdict must be for the defendant."

This instruction is erroneous. It is conceded that the plaintiff did transfer the possession of the automobile to Massi under a conditional

Appeal-error

sales contract, but whether at the time of the accident Massi had a right to the legal possession thereof was a question of law which the jury, in view of the instructions given, was not in a position to resolve. în instruction. That Massi had made a settlement with the defendant company was conceded, but whether the settlement was binding upon the plaintiff depended upon one of two propositions-whether the giving and receiving of the order lodged with Massi the sole right of recovery for the alleged tort, or whether plaintiff had authorized Massi to make the settlement. However, since, so far as this record is concerned, Massi had a right to the legal possession of the car, the verdict of the jury was directly against this instruction. That it does not correctly -failure to state the law would follow erroneous instruction. make no difference, for it is the duty of the jury to follow the instructions of the court whether they be right or wrong. King v. Lincoln, 26 Mont. 157, 66 Pac. 836; Allen v. Bear Creek Coal Co. 43 Mont. 269, 115 Pac. 673; De Young v. Benepe, 55 Mont. 306, 176 Pac. 609.

Instruction No. 19 is as follows: "You are instructed that if you find from the evidence that Lacey, after the institution of the suit by Massi against the defendant for damage to the automobile involved in this action, became aware of the pendency of said suit by Massi, and agreed that Massi should prosecute said action against the railroad company as the owner, conditional vendee, or pretended owner, of said automobile, and that the action by Massi against the defendant railway company was thereafter compromised and settled by Massi, then the plaintiff is bound by said compromise and settlement, if any, and cannot recover in this action, and your verdict must be for the defendant."