Silsby v. Boston and Albany Railroad

Massachusetts Supreme Judicial Court

Silsby v. Boston and Albany Railroad

57 N.E. 376, 176 Mass. 158, 1900 Mass. LEXIS 873

CourtMassachusetts Supreme Judicial Court

DecidedMay 18, 1900

StatusPublished

Cited by5 cases

This text of 57 N.E. 376 (Silsby v. Boston and Albany Railroad) 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

Silsby v. Boston and Albany Railroad, 57 N.E. 376, 176 Mass. 158, 1900 Mass. LEXIS 873 (Mass. 1900).

Pincite

Opinion

Lathrop, J.

We do not find anything in the facts set forth in the bill of exceptions to take the case out of the general rule that the sale was conditioned on the sending of a note by the buyer to the seller; and that whether there was a waiver of the [160]*160condition was a question of fact. Whitwell v. Vincent, 4 Pick. 449. Hill v. Freeman, 3 Cush. 257. Whitney v. Eaton, 15 Gray, 225. Farlow v. Ellis, 15 Gray, 229. Hirschorn v. Canney, 98 Mass. 149. Adams v. O'Connor, 100 Mass. 515. Nelson v. Dodge, 116 Mass. 367. Armour v. Pecker, 123 Mass. 143. Salomon v. Hathaway, 126 Mass. 452. Brownville Maine Slate Co. v. Hill, 175 Mass. 532.

So far as the custom in the trade is concerned, the fact that it was not the custom to send the note until after the buyer should verify the quality and count of the lumber as compared with his order is immaterial. The defendant argued that this necessitates the unloading of the ear; but a delivery to the buyer would not necessarily be a waiver of the condition, as is held in many of the cases above cited. Nor can the fact that the buyer could, to a certain extent, suit his own convenience in removing the lumber from the custody of the carrier or the warehouseman make any difference. The lumber still remained the property of the sellers. As to the usage for the buyer to sell directly from the railroad subject to the company’s lien for charges, this is to be said, that the usage does not go far enough. It does not appear that a buyer of lumber may sell and pass a good title without acquiring a good title himself, and this in the present case Paul did not have. Moreover, it may be said that the controversy in this case is not between the plaintiffs and a purchaser for value, but between the plaintiffs and a person who has no more rights than Paul had. See Whitney v. Eaton, 15 Gray, 225, 226.

The defendant asked for twenty-three instructions. Most of these were given. The eleventh request, on the authority of the cases above cited, was properly refused. We see nothing in the other requests for instructions which were refused which requires further discussion.

Exceptions overruled.

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Lathrop, J.

We do not find anything in the facts set forth in the bill of exceptions to take the case out of the general rule that the sale was conditioned on the sending of a note by the buyer to the seller; and that whether there was a waiver of the [160]*160condition was a question of fact. Whitwell v. Vincent, 4 Pick. 449. Hill v. Freeman, 3 Cush. 257. Whitney v. Eaton, 15 Gray, 225. Farlow v. Ellis, 15 Gray, 229. Hirschorn v. Canney, 98 Mass. 149. Adams v. O'Connor, 100 Mass. 515. Nelson v. Dodge, 116 Mass. 367. Armour v. Pecker, 123 Mass. 143. Salomon v. Hathaway, 126 Mass. 452. Brownville Maine Slate Co. v. Hill, 175 Mass. 532.

So far as the custom in the trade is concerned, the fact that it was not the custom to send the note until after the buyer should verify the quality and count of the lumber as compared with his order is immaterial. The defendant argued that this necessitates the unloading of the ear; but a delivery to the buyer would not necessarily be a waiver of the condition, as is held in many of the cases above cited. Nor can the fact that the buyer could, to a certain extent, suit his own convenience in removing the lumber from the custody of the carrier or the warehouseman make any difference. The lumber still remained the property of the sellers. As to the usage for the buyer to sell directly from the railroad subject to the company’s lien for charges, this is to be said, that the usage does not go far enough. It does not appear that a buyer of lumber may sell and pass a good title without acquiring a good title himself, and this in the present case Paul did not have. Moreover, it may be said that the controversy in this case is not between the plaintiffs and a purchaser for value, but between the plaintiffs and a person who has no more rights than Paul had. See Whitney v. Eaton, 15 Gray, 225, 226.

The defendant asked for twenty-three instructions. Most of these were given. The eleventh request, on the authority of the cases above cited, was properly refused. We see nothing in the other requests for instructions which were refused which requires further discussion.

Exceptions overruled.

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57 N.E. 376, 176 Mass. 158, 1900 Mass. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silsby-v-boston-and-albany-railroad-mass-1900.

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