the United States from proceeding with a sale of property under a decree of that court. In the other cases cited, except Watson v. Jones, the purpose was to directly enjoin parties from proceeding in the state courts. In Watson v. Jones was considered what identity of parties, rights and relief prayed for were necessary to enable the pendency of an action in one court to be pleaded in bar in another court, and it was said: "The identity in these particulars should be such that if the pending case had already been disposed of, it could be pleaded in bar as a former adjudication of the same matter between the same parties." The principle was also expressed in that case, and sustained by authorities, that the possession of property by one court cannot be interfered with by another, and, that "The act of Congress of March 2, 1793 (now § 720 of the Revised Statutes of the United States) as construed in Diggs v. Walcott, 4 Cranch, 179, and Peck v. Jenness, 7 How. 625, are equally conclusive against any injunctions from the Circuit Court, forbidding the defendants in the case to take possession of property which an unexecuted decree of a state court required the marshal to deliver to them." The case at bar has not that feature, nor has it identity with the case in the Chancery Court of Shelby County. Its parties and purposes are different. The pendency of a suit in a state court does not deprive a Federal court of jurisdiction. Gordon v. Gilfoil, 99 U. S. 168; Insurance Co. v. Brunes' Assignee, 96 U. S. 588; Stanton et al. v. Embrey, Administrator, 93 U. S. 548; Merritt v. American Barge Co., 79 Fed. Rep. 228; Bank of Kentucky v. Stone, 88 Fed. Rep. 383.

The Circuit Court had jurisdiction, and its decree is

Affirmed.

WILLIAM W. BIERCE, LIMITED, A CORPORATION, v. HUTCHINS.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

HAWAII.

No. 212. Argued March 20, 21, 1907.-Decided April 8, 1907.

In an appeal from the Supreme Court of the Territory of Hawaii, tried by the court of first instance without a jury, where the Supreme Court of the Territory reversed the conclusions of law, but took the finding of fact as true, and those findings are not open to dispute, but the question for decision is definite and plain, there is no need to send the case back for a statement of facts by the Supreme Court of the Territory, although one should have been made.

Election is simply what its name imports; a choice shown by an overt act between two inconsistent rights either of which may be asserted at the will of the chooser alone. Transfer is different from election and requires acts of a different import on the part of the owner and corresponding acts on the part of the transferee.

The fact that a party, through mistake, attempts to exercise a right to which he is not entitled does not prevent his afterwards exercising one which he had and still has unless barred by the previous attempt. The absolute liability for the price and putting that liability in the form of a note are consistent with the retention of title until the note is paid; and, in the absence of statute, a stipulation that the sale is conditional and the goods remain the property of the seller, until payment of a note given for the price is lawful and enforceable in replevin even where, as in this case, possession was given and additional security of mortgage bonds was required.

16 Hawaii, 717, reversed.

THE facts are stated in the opinion.

Mr. Charles H. Aldrich, with whom Mr. Henry W. Prouty and Mr. Henry S. McAuley were on the brief, for appellant: The findings of fact by the trial court were adopted by the Supreme Court of the Territory, though different legal conclusions were held to follow from such facts. This is equivalent to a special finding by the Supreme Court. Stringfellow v. Cain, 99 U. S. 610; Harrison v. Perea, 168 U. S. 311, 323, and cases there cited.

205 U.S.

Argument for Appellant.

Appeal and not writ of error was proper because of the provisions of the act of April 7, 1874, 18 Stat. 27. Story v. Black, 119 U. S. 235; Idaho Improvement Co. v. Bradbury, 132 U. S. 509; Gregory Consolidated Min. Co. v. Starr, 141 U. S. 222.

The doctrine of election, whether on the common law or equity side of the court, depends not upon technical rules, but upon principles of equity and justice, and upon actual intention. Watson v. Watson, 128 Massachusetts, 152, 155; Standard Oil Co. v. Hawkins, 74 Fed. Rep. 395.

No rights of third parties are involved. The property was in the custody of a court of equity. The attorney said to have made the election was acting for other creditors who, with a creditors' committee and the approval of the court, were carrying on the business of the insolvent debtor. Replevin would have made these plans impossible. The attorney swears he had no intention of making an election, and the facts show he could not have had, if exercising sound judgment. In such a case the party is not held to an election. Johnson-Brinkman Commission Co. v. Mo. Pac. Ry. Co., 126 Missouri, 344; Wells v. Robinson, 13 California, 134; In re Van Norman, 41 Minnesota, 494, 496; Garrett v. Farwell Co., 199 Illinois, 436, 440.

Even where there are inconsistent rights the question of the conclusive effect of an election depends upon whether the rights of third parties have intervened. If so, the election is conclusive. If not, it is not conclusive. Dickson v. Patterson, 160 U. S. 584, 592; Campbell Printing Press Mfg. Co. v. Rockaway Publishing Co., 56 N. J. L. 676; Standard Oil Co. v. Hawkins, 74 Fed. Rep. 395.

The cases cited in the opinion of the court below and relied upon involved the rights of third parties taking without notice. Lehman v. Van Winkle, 92 Alabama, 443; Van Winkle v. Crowell, 146 U. S. 42.

If the party does not in fact have two inconsistent rights, and merely attempts to assert a right he does not have, but supposes he has, and without obtaining any legal satisfaction

therefrom, he is not precluded from asserting his actual right. Snow v. Alley, 156 Massachusetts, 193, 194, 195, and cases cited; Watson v. Watson, 128 Massachusetts, 152, 155; FullerWarren Co. v. Harter, 53 L. R. A. 603, 606; In re Norman, 41 Minnesota, 494, 496.

Mr. David L. Withington and Mr. Aldis B. Browne, with whom Mr. Alexander Britton, Mr. John W. Cathcart and Mr. William R. Castle were on the brief, for appellee:

The transaction did not constitute a conditional sale. The device of attempting a contradiction in terms by apparently retaining the title in the vendor and then giving to the vendee not only the indicia of ownership but also powers which are inconsistent with the retention of title has been long the subject of judicial reprobation, and the rule is well settled that although there may be an express agreement that title is to remain in the vendor until the performance of some condition, the contract will be construed as an absolute sale where the other circumstances of the case indicate that the parties so intended. Herryford v. Davis, 102 U. S. 205; Andrews v. Colorado Savings Bank, 20 Colorado, 313; Mining Co. v. Lowrey, 6 Montana, 288; Aultman v. Silpa, 85 Wisconsin, 359; Palmer v. Howard, 72 California, 293.

From its decisions it would appear that the rule laid down by this court is that a conditional sale should not be inferred, but that where the intent to preserve the title in the vendor is clear and there is nothing inconsistent therewith in the transaction, particularly if the right to possession is reserved, then the condition will be maintained. Ark. Valley Co. v. Mann, 130 U. S. 69; Chicago Ry. Equipment Co. v. Merchants' Bank, 136 U. S. 268.

The entire agreement, with the construction put upon it by the parties, and the circumstances which surround it, show that it was not the intention or agreement of the parties to reserve the title; and that the terms of the agreement, the construction put upon it by the parties and the circumstances

which surround the agreement are all inconsistent with such theory.

Taking the mortgage bonds as security was inconsistent with the retention of title in the plaintiff. Acting with full knowledge of all the circumstances plaintiff has no right to complain if its agreement is less remunerative than if the bondholders had joined with the company in making a contract. Toledo R. R. Co. v. Hamilton, 134 U. S. 296.

As a bondholder it is estopped from asserting that the mortgage does not cover all the property and rights which it professes to cover, that the rolling stock as well as the superstructure and fixtures of the road as it came into existence become instantly attached to and was covered by the mortgage. Galveston R. R. Co. v. Cowdrey, ubi supra.

Taking the mortgage which presumably warrants that the title is in the Kona Company, is clearly inconsistent. Cases supra and Austin v. Hamilton, 96 Georgia, 759; McCormick Harvester Co. v. Lewis, 52 Kansas, 358.

The delivery of the property and its use without claim of title for two years is inconsistent with the claim of the vendor's retaining title.

The mere delivery of the property itself has been held presumptive evidence of the waiver of the condition. Peabody v. McGuire, 79 Maine, 572; Farlow v. Ellis, 15 Gray, 229.

And the granting of additional time was such a waiver. Cole v. Hines, 81 Maryland, 476; Hutchins v. Munger, 41 N. Y. 155.

How much more is the definite intention that the property should be incorporated into the plantation, should come under the security of a mortgage being negotiated at the same time, and the security of which mortgage was taken to secure the purchase price.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an appeal from a decision upon a bill of exceptions