206 Mass. 9 | Mass. | 1910
This is an action for the conversion of a second hand steam power carbonator. Under the evidence most
“ Boston, May 6,1904.
“ This is to certify that we, the undersigned, have received of C. H. Joyce of Lowell, Mass, one New Era steam power carbonator on sale which when sold and paid for by purchaser the said Joyce to have two hundred dollars net, the undersigned to guarantee said amount or return of said machine. Any damage to said machine from fire or other causes is at the risk of said Joyce.
“ Sage Bros. Co.
U. Y. Sage.”
In July, 1905, the defendant made a written contract with the firm of Burns Brothers, for a conditional sale or lease of a certain electric carbonator, to be paid for in instalments, the title to remain in the defendant until full payment was made. The carbonator was sent on trial for thirty days. As it did not prove satisfactory to Burns Brothers, the defendant, about September 15 of that year, took it back and replaced it with the plaintiff’s carbonator, which was taken by Burns Brothers under the same contract as the first. As a part of the transaction Burns Brothers gave a number of non-negotiable instalment notes, payable to the defendant. The plaintiff was not a party to the contract and was unknown to Burns Brothers. Before delivering the plaintiff’s carbonator to Burns Brothers, the defendant thoroughly overhauled and repaired it at its own expense, replacing worn parts with new, all without the knowledge of the plaintiff, and at a cost of $75. The plaintiff, having ascertained what had been done, brought this action in April, 1906. Upon these facts the judge
Under the agreement in writing, the only authority that the defendant had over the plaintiff’s carbonator was to sell it for him and to receive payment for it, giving him the proceeds up to
Exceptions overruled.
Hardy, J.