Lynn Morris Plan Co. v. Gordon, 251 Mass. 323

Lynn Morris Plan Co. v. Gordon

251 Mass. 323 | Mass. | 1925

Rugg, C.J.

This is an action of tort for the conversion of an automobile. On April 1,1920, the owner of the automobile entered into a written agreement with one Therrien for its conditional sale. By the terms of that agreement the title remained in the seller and would not pass to Therrien until the entire purchase price had been paid. At the same time Therrien paid $800 in cash and executed and delivered to the seller a promissory note to the order of the seller, payable in monthly instalments, for $1,470, the balance due on the purchase price. Thereupon Therrien was entitled to and took possession of the automobile. Shortly after, the seller, for the sum of $1,352.40, transferred the note by indorsement, waiving demand and notice, and all rights under the agreement to the plaintiff. This transfer of the agreement was not recorded. Subsequently, Therrien returned the automobile to the seller, who sold it to the defendant. The question is whether the plaintiff, default having been made in the payments due on the note and under the agreement, can maintain this action.

When and after the seller transferred his agreement for sale and indorsed the note to the plaintiff, he had no title or interest whatsoever in the' automobile. He possessed no evidence of title or interest. If the question arose between the plaintiff and a creditor or one standing in the shoes of a creditor of the seller, the plaintiff would have been unable to maintain its rights without giving notice to Therrien, so that he would become bailee of the automobile for the plaintiff instead of the seller. Mann v. Huston, 1 Gray, 250. Hallgarten v. Oldham, 135 Mass. 1, 9, 10. Clark v. Williams, 190 Mass. 219. Duffy v. Charak, 236 U. S. 97. But that is not the situation." The seller retained no title or interest. Therrien had no title or interest superior to that of the plain*325tiff. Whatever rights he had were subject to the plaintiff’s title. His wrongful conduct in conjunction with the wrongful conduct of the original seller cannot defeat the title of the plaintiff. The seller stood no better than a stranger to the transaction. The defendant acquired no greater title than his vendor was able to convey. He was in no position to dispute the title of the plaintiff. Royle v. Worcester Buick Co. 243 Mass. 143.

The transfer of the automobile by the seller to the plaintiff was not by way of security or mortgage. It was an absolute sale. It was not requisite that the instrument of transfer, which was in effect a bill of sale, be recorded under St. 1915, c. 226, in force at the time of this transaction. See now St. 1921, c. 233, amending G. L. c. 255, § 1. The case at bar is in this particular distinguishable from Worcester Morris Plan Co. v. Mader, 236 Mass. 435.

Order for judgment affirmed.