114 Mass. 376 | Mass. | 1874
This case falls within the numerous decisions of this court on the subject of conditional sales. When, by the agreement of the parties, the property does not vest in the purchaser until the purchase money is paid, the vendor may, if the money is not paid, recover the property from the vender, or from one who holds it under a mortgage or sale from him. Coggill v. Hartford & New Haven Railroad Co. 3 Gray, 545, and cases cited. Gilbert v. Thompson, Ib. 550, n. Zuchtmann v. Roberts, 109 Mass. 53. By the auditor’s report, it appears this sale was 6n condition that the goods furnished were to remain the property of the plaintiff until all the money due on them was paid. Half the purchase money was to be paid on delivery, which does not appear to have been done, and the balance, as the Meads were able to pay. The goods were not delivered at the time of the contract, but at intervals between September, 1865, and February, 1870, and the auditor expressly finds that they were delivered under the contract. Payments were made from time to time by the Meads. In February, 1870, and at the time this action was brought, a balance of $298 was due to the plaintiff. The condition not having been fulfilled, no title to the goods passed to the Meads, and they could not give a valid mortgage to the defendants.
But the defendants attempt to distinguish this case from the cases cited, and contend that the contract was illegal, because it covers the sale of articles not present or delivered, and which the plaintiffs did not own or possess at the time. But the rule that the sale of goods not in existence, or which do not, either actually or potentially, belong to the vendor at the time, is void, has no
The doctrine of the appropriation of payments is equally inapplicable, as no title passed till the money was all paid.
The rulings of the presiding judge were correct, and there must be
Judgment on the verdict.
