Belasco

This is an appeal from a judgment in favor of the defendant. The action is one in replevin for the return of an automobile sold by the plaintiff to the defendant, the plaintiff’s right to replevin the same being based upon the theory that at the time of the commencement of the action the defendant was in default in the payment of the sum of $350 due under the terms of a lease note, or conditional sale agreement, evidencing the transaction, and which agreement provided that in the event of default the plaintiff might retake possession of the ear. Defendant contends, on the other hand, that there was only the sum of $150 due, which he also claims to have tendered to the plaintiff prior to the institution of the action.

The court found for the defendant, awarded him possession of the car, and in addition gave him, upon his cross-complaint, $425 damages consequent upon the replevin of the car.

The agreement in express terms provided that the price of the automobile was $2,650, but that the defendant should be allowed thereon the sum of $1,250, the value of a car turned in by the defendant, and should also be credited with such further sum over and above the $1,250 as might be…