Blanchard v. Child

73 Mass. 155

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

Bigelow, J.

1. The sale of the omnibus on a condition which had not been complied with by the vendee vested no title iri him, which could pass by the sale on execution to the defendant. The right of property still remained in the plaintiff. Coggill v. Hartford & New Haven Railroad, 3 Gray, 545. Sargent v. Metcalf, 5 Gray, 306.

2, The evidence offered to prove the agreement of sale was clearly competent. It was not hearsay, but legal proof of a contract of which there was no other or better evidence. It was evidence of a fact, and not of a mere conversation or declaration. It being necessary to prove the agreement, of which there was no written evidence, it might be shown by the testimony of any one who was present when it was made. It was not necessary to prove it by the testimony of one of the parties to the contract. His evidence might have been more satisfactory and decisive; but it was no better evidence, in a legal sense, than that of any third person who was present when the agreement was made.

3. Under the circumstances stated in the instructions of the judge, no demand was necessary to enable the plaintiff to maintain this action. There was a wrongful sale of the plaintiff’s property by the bailee, in denial of the plaintiff’s right, participated in by the defendant, who claimed to hold the property by a title inconsistent with and adverse to the right of the plaintiff. This amounted to a conversion; and the plaintiff having the general property in the chattel, thereby became entitled to its immediate possession. 2 Greenl. Ev. § 642. Edwards v. Hooper, 11 M. & W. 363. Exceptions overruled.