Sallinger v. Collateral Loan Co.

215 Mass. 266 | Mass. | 1913

Hammond, J.

This is an action for the conversion of a diamond ring delivered by the plaintiff to one Capone under a conditional sale, the terms of which so far as material to this case were that the buyer should pay $2 per week; that he should keep the ring in his possession in like good order and condition as when received, reasonable use excepted, and should not sell or attempt to sell, mortgage, pledge or let it; that the title to the ring should remain in the plaintiff until it was fully paid for, and that if the buyer failed to make any payment when due, or to keep any other of his agreements, he should surrender the ring to the plaintiff, “without process of law or on demand.” Some time after the delivery of the ring Capone caused it to be pawned to the defendant to secure the payment by him (Capone) to the defendant of a loan of $40.

Upon the evidence we are of opinion that the questions, whether there had been a default in the payment of the money or in any other respect on the part of Capone, and whether before the action was brought there had been due demand made upon the defendant and a refusal by it to give up the ring, were for the jury. The jury were in substance instructed in language clear, apt and well calculated to help them, that the burden was upon the plaintiff to show that there had been a default on the part of the purchaser and consequently that at the time of the bringing of the action the plaintiff had the title to the ring and the right of possession of it, and that if he failed to prove a default the verdict should be for the defendant; and further, that even if there were a default the action could not be maintained without a demand first made. We see no error in the way in which the judge dealt with the case in the charge to the jury or with the rulings requested by the defendant. The defendant was the proper party upon whom to make the demand.

The right of action accrued as early at least as the time of the refusal of the defendant to give up the ring, and the right to damages then became complete. The plaintiff was not bound to receive at the trial the ring in part" payment of the damages. He could insist on payment in cash.

Exceptions overruled.