Hervey v. Dimond

Supreme Court of New Hampshire

Hervey v. Dimond

39 A. 331, 67 N.H. 342

CourtSupreme Court of New Hampshire

DecidedDecember 5, 1892

StatusPublished

Cited by6 cases

This text of 39 A. 331 (Hervey v. Dimond) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hervey v. Dimond, 39 A. 331, 67 N.H. 342 (N.H. 1892).

Pincite

Opinion

Smith, .1.

The contract (called a lease) does not, in legal effect, differ' materially from a conditional sale. Although by the contract it was stipulated that the plaintiffs should remain absolute owners of the goods until the full price should be paid, it does not follow that Story had no interest in the property. He had the right to pay the balance due and become the owner of the property.’ Whiie the plaintiffs remained the general owners until the full price should be paid, Story’s interest was that of a special owner, which the law recognizes and protects. It was an *344 assignable and attachable interest, his assignee or attaching creditor acquiring the same rights as he had. If Story failed to make the monthly payments according to the contract and the plaintiffs might for that cause have asserted a forfeiture, they waived the default by accepting an instalment August 14.

Although the attachment was nominally of the property, yet it plainly appears that Whitaker did not intend to attach in disregard of the plaintiffs’ rights, and he fully recognized them by tendering the amount due. If necessary, tire officer’s return can be amended co conform to the fact. By the tender of the amount due the plaintiffs, their title to the goods became vested in Story, subject to Whitaker’s attachment. As Whitaker seasonably tendered the amount of their claim, the defendant is entitled to judgment for the value of the property and for his costs. A few of the authorities in support of these views are Sargent v. Gile, 8 N. H. 325; Porter v. Pettengill, 12 N. H. 299; Bailey v. Colby, 34 N. H. 29; McFarland v. Farmer, 42 N. H. 386; Partridge v. Philbrick, 60 N. H. 556.

There is .a clause in the contract that Story, by suffering the property to be attached, would forfeit all right to and use of the goods. It does not appear that Story procured or advised the attachment to be made. Whether he can be said to have “ suffered ” the attachment to be made when it was not made by his procurement or with his consent, and when, so far as appears, he could not prevent it, is a question not made. The plaintiffs have not contended or suggested that Stoiy’s interest in the goods was terminated by the attachment.

Case discharged.

All concurred.

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Smith, .1.

The contract (called a lease) does not, in legal effect, differ' materially from a conditional sale. Although by the contract it was stipulated that the plaintiffs should remain absolute owners of the goods until the full price should be paid, it does not follow that Story had no interest in the property. He had the right to pay the balance due and become the owner of the property.’ Whiie the plaintiffs remained the general owners until the full price should be paid, Story’s interest was that of a special owner, which the law recognizes and protects. It was an *344 assignable and attachable interest, his assignee or attaching creditor acquiring the same rights as he had. If Story failed to make the monthly payments according to the contract and the plaintiffs might for that cause have asserted a forfeiture, they waived the default by accepting an instalment August 14.

Although the attachment was nominally of the property, yet it plainly appears that Whitaker did not intend to attach in disregard of the plaintiffs’ rights, and he fully recognized them by tendering the amount due. If necessary, tire officer’s return can be amended co conform to the fact. By the tender of the amount due the plaintiffs, their title to the goods became vested in Story, subject to Whitaker’s attachment. As Whitaker seasonably tendered the amount of their claim, the defendant is entitled to judgment for the value of the property and for his costs. A few of the authorities in support of these views are Sargent v. Gile, 8 N. H. 325; Porter v. Pettengill, 12 N. H. 299; Bailey v. Colby, 34 N. H. 29; McFarland v. Farmer, 42 N. H. 386; Partridge v. Philbrick, 60 N. H. 556.

There is .a clause in the contract that Story, by suffering the property to be attached, would forfeit all right to and use of the goods. It does not appear that Story procured or advised the attachment to be made. Whether he can be said to have “ suffered ” the attachment to be made when it was not made by his procurement or with his consent, and when, so far as appears, he could not prevent it, is a question not made. The plaintiffs have not contended or suggested that Stoiy’s interest in the goods was terminated by the attachment.

Case discharged.

All concurred.

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39 A. 331, 67 N.H. 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hervey-v-dimond-nh-1892.

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