| Mass. | Mar 1, 1893
It is settled in this Commonwealth that a breach of warranty upon a sale of personal property authorizes the purchaser to rescind the contract and return the article, although there was no express agreement to that effect, and no fraud. Bryant v. Isburgh, 13 Gray, 607. It has been found in this case that there was such breach of warranty and right of rescission. The bill of exceptions states that there was evidence tending to show that the defendant, claiming a right to rescind, left the buggy upon the plaintiff’s premises, and demanded the heifer, and that the plaintiff refused to give up the heifer and forbade the defendant to take it. Though it is not expressly stated in the bill of exceptions that these facts appeared to be true, yet the plaintiff’s brief relies on the plaintiff’s prohibition as proved, and assumes the truth of the above facts, and therefore we assume them to have been proved.
The most important question in the case is, whether on these facts the defendant had a right to enter upon the plaintiff’s premises and reclaim her heifer. We are of opinion that she had. It is' true that it has been held that, where nothing appears except that the goods of one person are upon the land of another, the owner of the goods has no implied license from the owner of the land to enter and take them away. Anthony v. Haneys, 8 Bing. 186. 2 Greenl. Ev. § 627. And this rule has been applied to the case of a mortgage of personal property before foreclosure, if the goods have been left in the mortgagor’s possession. McLeod v. Jones, 105 Mass. 403" court="Mass." date_filed="1870-10-15" href="https://app.midpage.ai/document/mcleod-v-jones-6416224?utm_source=webapp" opinion_id="6416224">105 Mass. 403. But after foreclosure the mortgagee has an implied irrevocable license to enter and carry away his goods. McNeal v. Emerson, 15 Gray, 384. Where a piano was hired for an indefinite time, with no agreement giving to the owner a right to enter the hirer’s premises and reclaim the piano without prior demand or notice, it-was held that he had no implied license to do so. Smith v. Pierce, 110 Mass. 35" court="Mass." date_filed="1872-09-15" href="https://app.midpage.ai/document/smith-v-pierce-6416889?utm_source=webapp" opinion_id="6416889">110 Mass. 35. But where one sells personal property which is on his own land, the purchaser has an implied license to enter, and take it away. Nettleton v. Sikes, 8 Met. 34. Giles v. Simonds, 15 Gray, 441.
In the present case, on the facts assumed, the defendant had a right to the possession of her heifer under her bargain with
The plaintiff further contends that the defendant’s right of rescission was lost because the buggy was broken, and therefore was not returned to him in the same condition in which it was when the defendant took it. But the breaking of the spring was just what the plaintiff had warranted against. It occurred without the defendant’s fault. Under these circumstances, the plaintiff cannot complain of the accident to the buggy. Head v. Tattersall, L. R. 7 Ex. 7. Elphick v. Barnes, 5 C. P. D. 321.
The first instruction requested was rightly refused. The jury might well find from the evidence that the defendant relied on the warranty, though in her testimony she did not say in express terms that she did so.
The plaintiff’s second request for instructions was that “ in order to rescind the contract the defendant was bound within a reasonable time to restore to the plaintiff the buggy in as good condition as she received it.” He now raises the objection that the judge did not say to the jury that the return of the buggy must be within a reasonable time. But there was no controversy at the trial on this point. The defendant expressly conceded the doctrine as to reasonable time. The stress of the request turned upon the last portion of it, as to the condition of the buggy. It is true, that theoretical accuracy would have required a statement that the return must be within a reasonable time, if indeed that question was to be submitted to the jury at all. But the jury could not have been misled by the omission, and there is no occasion to grant a new trial on this ground.
The plaintiff’s third request does not contain a correct statement of the law, applicable to the case. In the first place, there was no question of fraud, and no instructions on that hypothesis were called for; and as to the remainder of the request, it is enough to say that a purchaser of an article may examine it for
Exceptions overruled in lath cases.