This action was brought in the Municipal Court of the City of Boston for replevin of a piano. The trial judge found that on March 26, 1931, the plaintiff entered into a contract with Eudora G. Durgin for the sale of a Chickering piano for which she agreed to deliver her Steinway piano in even exchange. On March 27, 1931, the same Eudora G. Durgin entered into a similar contract with the defendant agreeing to purchase a Steinert upright piano and give in exchange her Steinway piano, and on the same day the defendant took possession of the Steinway piano which was replevied from the defendant on this writ.
The testimony of Mrs. Durgin tended to prove that she went to the plaintiff’s store on March 26 and signed a contract for the exchange of pianos, after having seen a representative of the defendant with whom she had an appointment' for the next morning. After signing the contract with the plaintiff and before she entered into the agreement with the defendant she telephoned the representative of the defendant and told him she had decided to take a Chickering piano in place of the Steinert. He suggested that she should not make a decision until he saw her, and on the next day the representative of the defendant saw her and the contract was entered into with the
The defendant requested the trial judge to rule: “1. Upon all the evidence and the law the plaintiff is not entitled to recover, because .... They have not shown the right of immediate possession as against the defendant. 2. If Mrs. Durgin remained in possession of the piano in question and delivered it to the defendant, the defendant paying value therefor and taking the same in good faith without notice of any previous sale, the plaintiff cannot recover. 3. The transaction in this case was of the same effect as though Chickering & Sons authorized Mrs. Durgin to make the sale to the defendant. 4. There was no evidence tending to show that the defendant did not take the piano of value in good faith and without notice. 5. If the defendant did not receive notice of a prior contract with the plaintiff until after it had taken possession of the piano the plaintiff is not entitled to recover.” The requests numbered 1, 3, anci 4 were denied. As to requests numbered 2 and 5 the trial judge stated that they were good statements of the law, but that the facts therein assumed were not found. He then made findings to the effect that the defendant did not take the piano in good faith and that it had notice of the sale, and found for the plaintiff, assessing damages in the sum of $1. Upon report to the Appellate Division the report was ordered dismissed and the defendant appealed.
The contention of the defendant is that its first request should have been given because the right to possession in this case depends upon the passing of legal title to the plaintiff, and that the evidence does not justify a finding
The rule stated in Goodhue v. State Street Trust Co. 267 Mass. 28, 36, does not apply because upon the facts found in the case at bar as to notice and good faith the two contracts in question were not of equal validity.
Order of Appellate Division dismissing report affirmed.