Fisher v. Alsten

| Mass. | Oct 18, 1904

Hammond, J.

Even if it be assumed in favor of the plaintiff that the “ voting contest ” was legal, and further, that he, as the person who turned in the most cash, should have been declared the winner, there is still one defect in bis case which is fatal.

The action is replevin and the plaintiff must show at least his right to possession. And this must be a legal right; an equitable right is not sufficient. In this case the right must rest on title alone; and the title never was in the plaintiff. The committee, acting under “full power to manage and carry on the fair and the voting contests,” decided and formally announced that Nilson was the winner, and delivered to him an essential part of the machine as a symbolical delivery of the whole. It is not shown that the committee did not act in good faith and in accordance with an honest belief as to the proper interpretation of the conditions of the contest and the rights of the contestants. It does not appear that at the time Nilson was declared the winner the plaintiff was present or knew the state of the “ polls,” but at any rate he does not seem to have made any objection to the action of the committee until the following Monday.

It is plain that up to the time of the decision of the committee in favor of Nilson the proceedings had not gone beyond a mere executory contract so far as respected the committee. Right or wrong they did not think that the plaintiff had won, and the minds of the contracting parties never met in favor of the plaintiff on that question. Hence neither the title nor the right to possession arising therefrom ever passed to the plaintiff. If he has been aggrieved by the action of the committee he must seek his remedy in another form of action.

Exceptions sustained.