281 Mass. 554 | Mass. | 1933
This is a suit in equity under G. L. (Ter.
Ed.) c. 214, § 3 (8), to reach and apply shares of stock in the defendant Perkit Folding Box Company, Inc., in satisfaction of the liability of the individual defendants upon a written contract with the plaintiff, dated August 27, 1929, for the purchase by the individual defendants of two machines under a conditional sale by which the plaintiff seller was to retain title until the machines should be severally paid for in monthly instalments. The bill as amended claims alternatively the price and damages for breach of the contract to buy, and thus comes within the class of bills with a double aspect, under which a plaintiff may seek the more favorable alternative relief, and, failing that, the other. Ginn v. Almy, 212 Mass. 486, 493. Garden Cemetery Corp. v. Baker, 218 Mass. 339, 342. Chinese American Restaurant Corp. v. Finigan, 272 Mass. 360, 365. The findings of the trial judge are final, since in the absence of the evidence we have no means of revising them.
The judge found no breach of contract by the buyers as to one machine, and the plaintiff does not argue that he was wrong. As to the other, a blanking machine costing $1,000, the contract set forth that the buyer “agrees to buy,” and the seller impliedly agreed to deliver; but although the “date of delivery” was referred to, neither the date nor the place of delivery was specified. It was provided that the machine “is to be conveyed by a Conditional Bill of Sale in the usual form, reserving title in the seller until the said payments shall have been made,” and that the initial instalment shall be payable “upon the acceptance by the buyer of the said” machine. It was also provided that the buyers, within fifteen days after a test held on January 18, 1930, at the seller’s place of business, might cancel the agreement of purchase as to that machine, and that “in the event that such cancelation is
The judge found that the contract for the sale and purchase of the blanking machine related to “one particular designated secondhand machine then in the possession of the plaintiff,” which was to be the subject of test. He ruled that the right of the buyers to reject the machine for any cause expired at the end of fifteen days after the test. But he ruled that the provision making the buyers “unqualifiedly hable for the purchase” if they did not cancel the contract of purchase within fifteen days after the test meant that they were to be liable upon the contract of purchase but not necessarily hable for the price. He found that no damages beyond nominal damages of $1 had been shown for the breach of the contract to buy. He entered a final decree, ordering the individual defendants to pay the plaintiff SI, but refused to order a sale of the stock to satisfy the decree, because of disproportionate expense, and dismissed the bill against the defendant corporation.
The plaintiff appealed from the final decree. Its sole argument on appeal is that it should have been awarded the contract price of the blanking machine, instead of nominal damages for breach of contract.
In a conditional sale of goods, although the legal title is retained by the seller as security, the delivery to the buyer vests in him an assignable interest or special property that enables him, so long as he pays as agreed, to hold the goods for his own benefit even against the seller, and to divest the title of the seller and vest full title in himself by his own act in paying or tendering (Dame v. C. H. Hanson & Co. Inc. 212 Mass. 124,) the unpaid balance of the price, without any further act on the part of the seller. Hyland v. Hyland, 278 Mass, 112, 117. Williston, Sales (2d ed.)
Where, however, as in the present case, there has been no delivery to the conditional buyer, no conveyance by “a Conditional Bill of Sale in the usual form” as agreed, and no execution of “notes” for the price as the contract contemplated, neither the price nor any instalment of it has become due, and, upon the refusal of the buyer to accept delivery, the seller can recover only damages for breach of the executory contract. G. L. (Ter. Ed.) c. 106, § 53. Tufts v. Bennett, 163 Mass. 398. See also Barrie v. Quinby,
Decree affirmed.