Thorndike v. Bath

114 Mass. 116

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Ames, J.

In order that a sale of personal property should go into full effect, so that it cannot be defeated or set aside in favor of a subsequent bond fide purchaser of the same property, it is necessary that the first purchaser should show that he had perfected his title by having had actual delivery of it to himself, or by something equivalent thereto. Lanfear v. Sumner, 17 Mass. 110. Parsons v. Dickinson, 11 Pick. 352. Packard v. Wood, 4 Gray, 307. Veazie v. Somerby, 5 Allen, 280.

But it often happens, especially in the case of bulky articles, that an effectual delivery is made, although it does not appear that the thing sold was removed by the buyer, or came literally into his personal custody. The books are full of cases in which constructive or symbolic delivery is held to be equivalent to actual delivery, without a visible change of possession. The thing sold may remain in the hands of the seller, and yet 'the title may pass effectually to the buyer. This has repeatedly been decided in the case of the sale of a horse, which the buyer leaves in the custody of the seller. Tuxworth v. Moore, 9 Pick. 347. Bullard v. Wait, 16 Gray, 55. Elmore v. Stone, 1 Taunt. 458. In the last of these cases, the horse had been removed into another stable, but the court say that that fact was wholly immaterial. It is sufficient if the parties agree that the seller is to retain the possession, not under his lien for the price, but as the agent or bailee of the buyer.

In Marvin v. Wallis, 6 E. & B. 726, the seller retained the horse in his possession for his own use, by consent, or in other words as a borrower, and it was held that he was a bailee of the buyer, and that the delivery was sufficient. The possession of the seller continued uninterrupted, but the nature of his holding nod changed.

In Barrett v. Goddard, 3 Mason, 107, goods lying in a warehouse were sold by marks and numbers, and paid for by a promissory note on six months’ credit, it being a part of the bargain that the goods should remain at the option and for the benefit of the buyer at the seller’s warehouse, rent free, for the time being. It was held by Mr. Justice Story that the delivery was sufficient against subsequent purchasers, and that the continuance of possession by the seller did not prevent the delivery from being effectual, if the sale was otherwise complete and nothing remained to be done on the part of the buyer, and if it was a part of the bargain that they should remain with the seller.

In Beecher v. Mayall, 16 Gray, 376, it was held that where steam boilers were left in the possession of the seller to be repaired for the buyer, no further evidence of delivery was necessary, for the seller’s possession would be in that case the buyer’s possession. To the same effect is the decision in Hotchkiss v. Hunt, 49 Maine, 213, in which the court say, by Mr. Justice Kent, that when, by the terms of an agreement of sale, the article sold is to remain in the possession of the vendor for a specific purpose, as a part of the consideration, and the sale is otherwise complete, the possession of the vendor will be the pas session of the .vendee, and the delivery will be sufficient to pass the title, even against subsequent purchasers.

In the case at bar, the pianos sold to the defendant were designated by their numbers, and sufficiently identified; a bill was made and delivered, the price paid, and the sale has been found by the verdict to have been bona fide. Upon the case as presented by the exceptions, we think that the jury were authorized to find that the substance of the transaction between Matt and the defendant was a sale of the four unfinished pianos by Matt to the defendant, an exercise of control by the defendant, and a bailment of the pianos to Matt by the defendant to be finished for him, and a payment by note of the price of the pianos in their unfinished state, and of the labor and material to be furnished by Matt in order to complete them for the defendant. In this state of the evidence, we cannot say that the jury might not rightfully have inferred that the property was so delivered to the defendant as to pass the title, even against a subsequent purchaser.

Exceptions overruled.