Towne v. Rice

59 N.H. 412

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1879
• Status: Published

Opinion

Smith, J.

Tho sale of the wagon was not fraudulent in fact or in law. The change of possession was such as usually follows a change of ownership. It was open, visible, and substantial, the wagon being immediately removed by the plaintiff to his own premises, and taken into his own exclusive possession. The subsequent hiring and use of the wagon by the vendor’s wife was not a hiring or use by the husband. Her possession of the wagon as the bailee for hire of the plaintiff was not the possession of the husband nor of his agent. It does not appear that upon her return from Ware she parted with1 the possession of the wagon, or put it into the possession of her husband. If the plaintiff’s storing it in the barn for his own convenience and the security of the wagon was placing it in the vendor’s possession, it was not such a possession by the vendor as under the circumstances shows that the sale was accompanied with a secret trust. Subsequent possession by the vendor is open to explanation, and the explanation in this case is satisfactory.

Exceptions overruled.

Clauk, J., did not sit: the others concurred.