Dame v. C. H. Hanson & Co.

212 Mass. 124 | Mass. | 1912

Morton, J.

The property in question was sold by the defendant to one Terrell, upon what are termed “ conditional sales or leases.” The condition was as follows: “Signed by me [Terrell] and payable to C. H. Hanson & Co., Inc., or order that if said goods and chattels or any part thereof shall be attached or if I shall sell, mortgage, pledge or attempt to sell, mortgage or pledge the same or any part thereof, or shall fail to pay said note at maturity, said C. H. Hanson & Co., Inc., shall have the right without any demand or notice to take immediate possession of said property and hold the same absolutely free from all claims and demands from me.” Taking the condition as it reads, the title to the property would seem to have passed to Terrell subject to be divested at the option of the defendant upon the happening of either of the contingencies named and the taking possession of the property by the defendant pursuant to the condition.

But however that may be, and assuming that the title was in the defendant, it was held by it subject to the performance by Terrell of the conditions named, and Terrell had therefore a right or interest which he could and did convey in mortgage to the plaintiff. Chase v. Ingalls, 122 Mass. 381. Currier v. Knapp, 117 Mass. 324. Swallow v. Emery, 111 Mass. 355. Day v. Bassett, 102 Mass. 445. Upon tender of the amount due by Terrell or his assignee before possession was taken by the defendant, the title vested in Terrell or his assignee. Bailey v. Colby, 34 N. H. 29, 37. Cutting v. Whittemore, 72 N. H. 107, 111. The case differs from those cases relied on by the defendant where no right or interest whatever passed until the goods were paid for by the purchaser according to the contract. In Cottrell & Sons Co. v. Carter, Rice, & Co. 173 Mass. 155, possession was taken several months before a tender was made. In the present case possession was not taken till after the tender when the rights of the plaintiff to redeem had become fixed. It is not necessary to consider the scope or effect of R. L. c. 198, § 11.

Decree affirmed.