250 Mass. 299 | Mass. | 1924
This is an action of replevin to recover as against the defendant one Cadillac touring car 1918, engine No. 57H727. At the close of all the evidence the presiding judge directed a verdict for the plaintiff, and the case is before this court on the exceptions of the defendant thereto.
The evidence warranted a finding that the plaintiff on October 1, 1921, purchased of one Peter Ligor the touring
The record contains no evidence to show the title of the dealer, where he got the car, or his right to dispose of it. The plaintiff rests his right to immediate possession upon the terms of the conditional sale lease, more specifically upon those which read, “It is expressly understood and agreed that the title to said automobile or truck shall remain in the said Willard E. Eddy until the full sum of $625.00 . . . shall have been paid”; and “if the payments are not made as above specified . . . the said lessor may retake said automobile or truck wherever it may be, and all moneys theretofore paid by said lessee shall be forfeited.” To establish the right to possession the plaintiff testified that “ Ligor paid three of the notes, but not the others.” A daughter of the plaintiff testified that she kept the books, and did so in October, 1921; that the lease was drawn by a Mr. Bell, and that she made out the notes; that Ligor paid the first three notes and the remainder were unpaid. In cross-examination she testified that the last time Ligor came to the garage was in November; that the last two notes were paid by money
It is plain the jury were not bound to believe the testimony of the plaintiff, or of his daughter, that when the writ issued in August, 1922, three of the Ligor notes were overdue and unpaid. Nor, indeed, were they bound to believe that Ligor executed the bill of sale lease and the notes introduced in evidence. The defendant admitted no facts, there are no presumptions of fact, and the burden of proof is upon the plaintiff.
The general rule is well established, and subject to few exceptions, that a verdict cannot be directed in favor of one who has the burden of proof, where such a person in a material matter relies upon the credibility to be given to his own testimony or to that of his witnesses. It was error for the judge to direct a verdict in this case, although the testimony of the plaintiff and that of his witnesses were uncontradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, and cases collected. Giles v. Giles, 204 Mass. 383.
Exceptions sustained.