277 Mass. 251 | Mass. | 1931
The defendant appeals from a decree of the Superior Court restraining it from proceeding to replevy an automobile, and declaring a duly recorded mortgage thereon to be null, void and of no effect against the plaintiff or his assigns. The case was referred to a master. The evidence is not reported. No exceptions to the report were filed. The report has been confirmed. The findings of fact must be taken as true, unless inconsistent or repugnant to one another. Tripp v. National Shawmut Bank of Boston, 263 Mass. 505, 511. Material findings follow. In April, 1930, the defendant undertook to finance The Maykel Automobile Company, then in difficulty. On May 16, The Maykel Automobile Company for valuable consideration mortgaged automobiles then in its possession to the defendant. This mortgage was duly recorded on May 19. It provided that the “Mortgagor shall not except with the consent in writing of the said Mortgagee, sell or attempt to sell, remove or attempt to remove from the place of storage designated herein, the said goods or chattels or any part thereof.” Further it provided that any waiver of default, of a breach, or of any terms of the mortgage should not be valid unless' in writing signed, by the mortgagee, and should not be construed a waiver of any subsequent default or breach, or of that or any other term of the mortgage. On default the defendant became entitled to immediate possession of the automobiles mortgaged. No written consent was given to The Maykel Automobile Company to sell mortgaged automobiles before the date of payment of the amounts due under the mortgage. The Maykel Automobile Company
The defendant contends that the last two findings are not warranted, that permission to expose mortgaged property for sale or to demonstrate it to prospective customers “should not work an estoppel in the case of a duly recorded chattel mortgage,” and that the elements of estoppel and of a waiver are lacking here.
The essential question is whether a decision that the plaintiff has the better title where at the time of his purchase of the automobile he was affected with notice of the mortgage by its record in compliance with the statute is justified by the report. The plaintiff does not stand as a purchaser from one in possession, paying value in good faith and without knowledge of a previous sale, within the terms of G. L. c. 106, § 27, which provides that “If a person having sold goods continues in possession thereof . . . the delivery or transfer by such person ... of the goods . . . under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.” The provision of the sales act applicable to him is § 25 (1): “If goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.” It is essential to his full ownership of the automobile purchased by him on June 10, 1930, that it appear that the seller was acting under the authority of the owner or that the owner has by his conduct precluded himself from denying the seller’s authority — either or both. The law has long been
It is not essential that technical estoppel be made out to
Decree affirmed.