174 Mass. 394 | Mass. | 1899
The plaintiff is the duly elected assignee of one Dann. On October 14, 1897, the defendant, being the owner of a stock of goods and fixtures in a store, made an agreement in writing to sell them to Dann for the sum of $12,286, of which $500 was to be paid on that day in cash. The stipulation as to the payment of the balance was in these words: “ One half, or $5,893, to be paid by one half of the gross weekly sales of the business to be carried on in said store by said Dann, said payments to be made weekly until said $5,893 has been fully paid; thereupon said Dann shall pay to the said Lewenberg one third of the gross weekly sales in said business until the further sum of $2,946.50 has been paid; and thereupon said Dann shall pay to the said Lewenberg one fourth of the gross weekly sales in said business, until the final instalment of said purchase price, to wit, $2,946.50, shall have been fully paid.”
The defendant contends that the true meaning of the agreement is that the after-acquired property was to become his as fast as purchased and put with the stock, and therefore, he having taken possession, that the case comes within the principle stated in Blanchard v. Cooke, 144 Mass. 207, and Bennett v. Bailey, 150 Mass. 257. There cannot be a transfer of title by bringing in goods in this way, without a clear agreement to that effect. The writing contains no such agreement. It nowhere says that the defendant is to acquire any title under the instrument. It secures to him the ownership of the goods, which he agrees to sell until they are paid for, except that portion of them which is sold by Dann in the regular course of his business in accordance with the agreement. It is silent in regard to the
A sufficient reason for the requirement that the stock should be kept up is found in the provision that the defendant was to receive his payment from the gross weekly sales. So long as Dann kept up the stock to its full value the defendant might expect large and prompt payments, and when he failed to do this the defendant could take possession of his property which had not been sold.
The only exceptions are to the refusal of the court to give the two rulings requested. The facts hypothetically stated in the second request upon which the court was asked to rule that the defendant’s title was good, do not include an agreement, either express or implied, that the after-acquired goods should pass from the ownership of Dann to that of the defendant. The rule in Blanchard v. Cooke is not to be extended to cases in which the intention to pass a title is doubtful. See Tapfield v. Hillman, 6 M. & G. 245; Edwards v. Symons, 65 Mich. 348; Phillips v. Both, 58 Iowa, 499; Ludlum v. Rothschild, 41 Minn. 218.
Exceptions overruled. •