116 Mass. 388 | Mass. | 1874
This is an action of replevin for a locomotive boiler. It appeared at the trial that the plaintiffs bought the boiler of Snow, paid for it, and that, by direction of the plaintiffs, Snow placed it on a lot of land in the rear of Snow’s shop. The title to the boiler thus passed to the plaintiffs, as between them and Snow. It also appeared that, before this, Snow had mortgaged the boiler, together with other property, to Cate, who is the real defendant in this case, and the issue was whether the plaintiffs or Cate had the better title. The plaintiffs contended that the sale to them was made by Snow with the consent and by the authority of Cate.
As we understand the bill of exceptions, the learned judge ruled, as matter of law, that “ in the absence of evidence that Cate knew of the sale or payment for the replevied boiler, or any act of said Snow tending to show that it had passed out of his possession or control, the court could not find a sale of the same to the plaintiffs, with said Cate’s consent, or by his authority or ícense.” This is the same, ".n legal effect, as a ruling that there
We are of opinion that this ruling was erroneous. If, after the mortgage to him was made, Cate orally authorized the mortgagor to make sales of the mortgaged property, a sale by the latter would convey a good title to a bonâ fide purchaser. Stafford v. Whitcomb, 8 Allen, 518.
Whether Cate gave Snow authority to sell the boiler in suit was a question of fact, and there was evidence in the case which would justify the finding of this fact in favor of the plaintiffs. Snow was a manufacturer of boilers, and Cate from time to time sold him iron and other materials, and lent him money “ to enable him to carry on his business,” taking as security mortgages of his stock and manufactured property. The plaintiffs dealt with Snow for three years, buying stock and materials, which were included in Cate’s mortgages, sometimes paying Snow, and sometimes paying directly to Cate upon Snow’s orders, and Cate had a general knowledge of this course of dealing and acquiesced in it. Without considering the other evidence, it would be competent for a jury, or the judge to whom the facts were submitted, to infer from these facts, if uncontrolled, that Cate gave Snow a general authority to sell the mortgaged property to the plaintiffs.
If this be so, the fact that Cate did not know of the sale of this specific boiler, or of Snow’s acts in placing it in the rear lot, is immaterial, and would not terminate Snow’s authority. As the ruling was, in substance, that it was not competent for the court upon all the evidence to find for the plaintiffs, there must be a new trial. Exceptions sustained.
