Newhall v. Kingsbury

Massachusetts Supreme Judicial Court

Newhall v. Kingsbury

131 Mass. 445, 1881 Mass. LEXIS 285

CourtMassachusetts Supreme Judicial Court

DecidedOctober 22, 1881

StatusPublished

Cited by12 cases

This text of 131 Mass. 445 (Newhall v. Kingsbury) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Newhall v. Kingsbury, 131 Mass. 445, 1881 Mass. LEXIS 285 (Mass. 1881).

Pincite

Opinion

Morton, J.

This is an action of tort in the nature of trover to recover the value of a mowing-machine, which the defendant, a deputy sheriff, attached and sold as the property of one Cal-kins. The evidence shows that the plaintiffs sold the machine to Calkins in June 1879, upon the conditions that he should pay one half of the price on August 15, and the other half on September 20 of the same year, and that the machine should be the property of the plaintiffs until paid for. This agreement amounted to a conditional sale, liable to be defeated upon the non-performance of the conditions. Calkins, after the delivery to him, had a rightful possession which the plaintiffs could not interfere with until a failure by him to perform the condition. He had an interest in the property which he could convey, and which was attachable by his creditors, and which could [446]*446be ripened into an absolute title by the performance of the conditions. Vincent v. Cornell, 13 Pick. 294. Day v. Bassett, 102 Mass. 445. Currier v. Knapp, 117 Mass. 324.

K. W. Chapin W. H. Brooks, for the plaintiffs. B. 0. Dwight, for the defendant.

The defendant attached the machine on July 9, and sold it on execution on August 22,1879. The plaintiffs’ writ is dated July 28, 1879. Even if the sale by the defendant without performing the condition made him a trespasser ab initio, so that the plaintiffs could at any time after the breach of the condition maintain trover against him, yet the difficulty is, that, at the time the plaintiffs commenced this suit, there had been no breach of the condition, and they had no right of possession. In order to maintain trover, a plaintiff must show that, at the time he commences his suit, he had possession or a right to the immediate possession. Winship v. Neale, 10 Gray, 382. Ring v. Neale, 114 Mass. 111. Hardy v. Munroe, 127 Mass. 64.

It follows that this action was prematurely brought, and that the ruling of the Superior Court was correct.

Judgment on the verdict for the defendant.

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Morton, J.

This is an action of tort in the nature of trover to recover the value of a mowing-machine, which the defendant, a deputy sheriff, attached and sold as the property of one Cal-kins. The evidence shows that the plaintiffs sold the machine to Calkins in June 1879, upon the conditions that he should pay one half of the price on August 15, and the other half on September 20 of the same year, and that the machine should be the property of the plaintiffs until paid for. This agreement amounted to a conditional sale, liable to be defeated upon the non-performance of the conditions. Calkins, after the delivery to him, had a rightful possession which the plaintiffs could not interfere with until a failure by him to perform the condition. He had an interest in the property which he could convey, and which was attachable by his creditors, and which could [446]*446be ripened into an absolute title by the performance of the conditions. Vincent v. Cornell, 13 Pick. 294. Day v. Bassett, 102 Mass. 445. Currier v. Knapp, 117 Mass. 324.

K. W. Chapin W. H. Brooks, for the plaintiffs. B. 0. Dwight, for the defendant.

The defendant attached the machine on July 9, and sold it on execution on August 22,1879. The plaintiffs’ writ is dated July 28, 1879. Even if the sale by the defendant without performing the condition made him a trespasser ab initio, so that the plaintiffs could at any time after the breach of the condition maintain trover against him, yet the difficulty is, that, at the time the plaintiffs commenced this suit, there had been no breach of the condition, and they had no right of possession. In order to maintain trover, a plaintiff must show that, at the time he commences his suit, he had possession or a right to the immediate possession. Winship v. Neale, 10 Gray, 382. Ring v. Neale, 114 Mass. 111. Hardy v. Munroe, 127 Mass. 64.

It follows that this action was prematurely brought, and that the ruling of the Superior Court was correct.

Judgment on the verdict for the defendant.

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Bluebook (online)

131 Mass. 445, 1881 Mass. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newhall-v-kingsbury-mass-1881.

Opinion

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