102 Mass. 445 | Mass. | 1869
It appears that Holt, being the owner of the shaft which is the subject of controversy, sold and delivered it to Henry for $31.20, receiving $10 as part payment; that it was agreed that it should remain the property of Holt till it was paid for; and that Henry took it and put it into the mill in his occupation, and connected it with the machinery, and it continued to be used with the machinery. It is implied by the statement of the case that this was with the consent of Holt. But as no time of payment appears to have been fixed, it is implied that payment was to be made on demand. Henry would have the right under these circumstances to retain and use the shaft till he made default. Until such default Holt could not reclaim the property; and upon a tender of the balance due Henry’s title would become absolute. But before making the tendér he sold the machinery in the mill to the plaintiff, who entered and took possession of the property, including the shaft. He did not remove the shaft, but continued to use it as Henry had done. It is contended that this sale forfeited Henry’s right to complete his title by making payment of the balance. But this cannot be so consistently with the principles applicable to such contracts. As in the case of Vincent v. Cornell, 13 Pick. 294, it was a conditional sale to him, liable to be defeated by nonperformance of the condition. He had a right to dispose of the property, with his right therein, such as it was, to the defendant. He had a possession and a right of possession, and a right to use the property where it was until default of payment.
When Henry perfected his own title by a tender of the balance due, the plaintiff’s title became perfected thereby, and the defendants afterwards took the shaft away without right. These