241 Mass. 120 | Mass. | 1922
This is a bill in equity to recover possession of a motor truck, delivered by the plaintiff on a conditional sale agreement in writing, to one Judd and by him sold to the defendant, an innocent purchaser for value, without notice of the conditional sale contract. By this contract the automobile leased to Judd, was to become his property when fully paid for, and, until this was done, he was not to sell or mortgage it. The judge found for the plaintiff and the defendant appealed.
The defendant claims that it should have been permitted to show the course of dealing between the plaintiff and Judd and the conversations between them, before as well as after, the date of the contract as evidence that Judd had actual authority to make the sale. Judd was a dealer in automobiles and Arthur F. Baker, the plaintiff’s president, testified that the machine was in the possession of Judd to sell, in the course of business, but that he had no right to sell it without first paying the plaintiff what was due on the contract after “taking a deposit for the truck or making a contract for the truck, after which he should pay us for it, and having paid us, we would release the truck and he would then turn it over to his customer and get their check for it.” Judd was a witness and he testified that after the agreement was signed the plaintiff knew he was selling automobiles as if he were the owner. That he (Judd) always sold them before he paid the plaintiff and understood he had a right to sell the automobile as if he owned it; he further testified that after the contract was made Baker urged him to sell the truck and nothing was said “ about paying for the car before it was sold.” The defendant then offered to show by this witness that he had had previous transactions with the plaintiff, with reference to selling cars upon which there was a conditional lease, and he was asked how these cars had been sold. Evidence as to the usual course of business between the plaintiff and Judd on objection of the plaintiff was excluded. Baker also testified that his transactions with Judd extended over a period
In Spooner v. Cummings, 151 Mass. 313, an action of replevin of a horse, the plaintiff who owned the horse in question sold it to one Pope on May 26,1888, upon an agreement in writing signed by him which recited that the horse was to remain the entire and absolute property of the plaintiff until fully paid for by Pope. The plaintiff was a dealer in horses and had sold horses to Pope for several years. On June 2, 1888, Pope, before paying the plaintiff for the horse, sold it to the defendant and received payment for it from him. Against the objection of the plaintiff the defendant was permitted to show that the plaintiff gave Pope authority, express or implied, by the course of dealing between them to sell the horse before payment. The defendant then introduced evidence to the effect that for a long period the plaintiff and Pope had engaged in similar transactions and that according to the course of dealing between them Pope had purchased horses from the plaintiff and given him conditional sale agreements in writing; that the plaintiff would urge Pope to sell the horses and the latter before paying for them would resell them and send the money to the plaintiff, which he would apply as he saw fit on any of the agreements. It was held that the jury were rightly permitted to find that the plaintiff impliedly authorized the sale by Pope to the defendant, and in the course of the opinion, by Knowlton, J., it was said at page 315: “The defendant was not a party to the written contract between the plaintiff and Pope, but claimed outside of it, and in support of his own title he might show by paroi what was the real arrangement between them, even if it differed from that contained in the writing.” The case at bar is governed by Spooner v. Cummings, and the defendant should have been per
The rule excluding paroi evidence to contradict a written instrument is not infringed when, as in the case before us, a third person, who does not claim under the written instrument, seeks to show that it was not the real contract between the parties. Maionica v. Piscopo, 217 Mass. 324, is a case in point. The plaintiff, a tenant, sued for injuries caused by a defect in the premises. The defendant, the owner, defended on the ground that by a written contract he had leased the entire premises to one Zerella. Parol evidence of conduct and admissions offered by the plaintiff was admitted to show that the lease was a mere sham devised to shield the owner of the property from the responsibilities of ownership. This rule has been followed in many cases. Hawes v. Weeden, 180 Mass. 106. Wilson v. Mulloney, 185 Mass. 430. Johnson v. Von Scholley, 218 Mass. 454. Warner v. Brown, 231 Mass. 333, 338.
The defendant in the case at bar did not claim to own the automobile under the written agreement between the plaintiff and Judd. Its claim was outside of this agreement, and not based upon it; and it had the right to show by competent evidence, that the written agreement was not in fact the real agreement between
Because the defendant was not permitted to show the course of business between Judd and the plaintiff, the decree must be reversed; and it is
So ordered.