12 R.I. 233 | R.I. | 1878
The first ground assigned for a new trial is that the court instructed the jury that the plaintiff was not entitled to recover, if the defendant when he took the piano was acting as agent for the general owner; whereas the plaintiff claimed, and requested the court to charge, that the plaintiff acquired a special property in the piano by the attachment which would entitle him to maintain his action.
It is manifest that the plaintiff could not acquire any property in the piano, otherwise than by estoppel, unless Guild had a property in it which was liable to attachment. But Guild had no attachable property in it; for by the terms of the contract under which he received the piano it was to remain the property of the vendors until it was fully paid for as stipulated, and at the time of the attachment only $175 of the $525, which under the contract ought to have been paid for it two years previously, had been paid. Guild therefore had merely a possession of the piano, but no right in it, unless possibly he might still in equity *236
have a right to complete the purchase by paying the residue of the price with interest. But such a right, even if it existed, would not be a right of property, but merely a right resting in contract, and would not be subject to attachment. This view is abundantly supported by authority. Sage v. Sleutz,
The plaintiff contends that Guild had an assignable and therefore an attachable interest. It is doubtful if Guild had any right which he could assign in view of the fact that the time for making the stipulated payments had expired and that he was forbidden by the contract to sell the piano or to suffer it to go out of his possession. But admitting, causa argumenti, that the piano might have been sold or assigned by Guild, the purchaser or assignee could certainly not acquire any greater right than Guild himself had, which at the utmost was merely an equitable right resting in contract to complete the purchase, and not such a vested right of property as could be attached. See cases before cited.
The second ground for a new trial is, that the plaintiff requested the court to charge that if the defendant replevied the piano from Barney with the knowledge that it was only stored with him by Taft who was its keeper, the defendant thereby became a wrong-doer and could not set up the title of a third person in defence of his illegal act, and that the court refused this request and charged the jury as before stated.
The request assumes that the piano was irrepleviable from Barney because it was in the custody of Taft as keeper for the plaintiff. Undoubtedly if the plaintiff's attachment had been good, the writ of replevin, inasmuch as it did not run against him or his keeper, would have been no defence to the action; but we do not see how it became unlawful for the defendant to take the piano for its owner on a writ of replevin against Barney with whom it was stored, merely because it was in the custody of a *237 keeper for the plaintiff under a void attachment, and the defendant was notified by the keeper that he had the custody of it. The attachment being void, the owner of the piano had a right to take it if he could do so without breach of the peace, and therefore the defendant, whether he took it under the writ of replevin or independently of it, inasmuch as he took it for the owner, cannot, in our opinion, be regarded as a mere wrong-doer. If he had taken it for himself or any other person having no right, his position would be very different.
The third ground for a new trial is not pressed.
The fourth ground is, that the plaintiff requested the court to instruct the jury that the time for paying for the piano as stipulated having expired, it could be extended only by a new agreement in writing, and that without an extension the owner had been guilty of laches in suffering the apparent ownership to remain in Guild; and this instruction the court refused. It is argued that the neglect of the owner for two years to enforce the conditions of the contract was calculated to induce the belief that the conditions had been fulfilled and that the owner therefore ought to be estopped from asserting the contrary. But if a neglect for two years was calculated to have this effect, so would be a neglect for less than two years. So that if the argument were pressed home, it would not be safe for the owner to grant any indulgence after the time of payment had expired. No cases are cited to show that such is the law. We think that in any given case the question whether the conditions of the contract have been waived, or whether the owner shall be estopped from asserting that they have not been waived or performed, is a question of fact for the jury, to be determined under the instruction of the court in view of all the circumstances, and not a pure question of law for the court. We think therefore that the court did not err in refusing the request. Marston v.Baldwin,
The last ground is that the court, though requested, refused to instruct the jury that the piano having been sold to Guild on condition, and he having been allowed to assume the apparent ownership, the attaching creditor had a right to consider the piano as Guild's, and it was for the owner to prove that the conditions *238
had not been fulfilled. We think the court erred in refusing this request. This was so held in Leighton v. Stevens,
The error would be a good ground for a new trial if there were the slightest reason for believing the plaintiff had been injured by it. But the defendant had submitted testimony, which was entirely uncontradicted, that only $175 of the $525 which was to be paid for the piano had in fact been paid, so that if the court had given the instruction, it would have been its duty to call attention to the testimony and to the fact that it was uncontradicted, and the result would undoubtedly have been the same. Inasmuch, therefore, as the erroneous instruction did no harm, we do not think a new trial should be granted on account of it. Edmonson v. Machell, 2 Term Rep. 4; Waters v. Waters,
New trial denied and judgment for defendant on the verdict.
