Stinson v. Clark

88 Mass. 340

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1863
• Status: Published

Opinion

Metcalf, J.

If this case had been tried by a jury, and they had found that there was a delivery of the horse shoes to the plaintiff, we should not have set aside their verdict for that cause. Nor do we sustain the exceptions taken to the ruling of the judge to whom the parties submitted their case.

To make the sale by Ingraham effectual as against his attaching creditors, Lamson & Co., it was necessary that there should be a delivery of the property to the plaintiff. Packard v. Dunsmore, 11 Cush. 282. But when a contract of sale is bona fide, and payment is made, in full or in part, of the price, slight acts are sufficient to show a delivery that will avail the buyer against the claims of third persons. See Shumway v. Rutter, 8 Pick. 447; Phelps v. Cutler, 4 Gray, 138; Hardy v. Potter, 10 Gray, 89. In the case of Calkins v. Lockwood, 17 Conn. 154, the parties to a sale of iron met at the place where the iron was, and agreed upon the price and the mode of payment, and thereupon the seller said to the buyer, “ I deliver you this iron at that price.” Before the iron was removed by the buyer, it was claimed and taken away by a third person. It was decided that there was a delivery by the seller, and that the sale was valid. See also Barrett v. Goddard, 3 Mason, 107; Hilliard on Sales, (2d ed.) c. 7.

Exceptions overruled.