Taft v. Travis

136 Mass. 95 | Mass. | 1883

C. Allen, J.

There was some evidence tending to show that the plaintiff, being the owner of the engine, met the defendant, at a time when the latter had it in his possession either rightfully or wrongfully, and gave notice of his ownership, and that he, the plaintiff, did not wish the defendant to pay any one for it but himself; that the defendant did not dissent therefrom, and said he had paid a few dollars for setting it up, but would pay no more till he saw the plaintiff; that the engine accordingly remained in the possession of the defendant, with no offer on his part to give it up; and that nothing was thereafter done or said by him to modify the inferences which might be drawn from what had gone before. This, if believed by the jury to be the true state of the case, would warrant them in finding that both parties assented to treating the engine as then sold by the plaintiff to the defendant, for a reasonable price, not fixed. If the defendant did not wish, to keep it on these terms, he might have said so. An assent to. a sale need not be in express terms; and it is not necessary that a price be fixed by the parties. If no price is fixed, the law implies that it is what the article is reasonably worth. Acebal v. Levy, 10 Bing. 376. Hoadly v. M'Laine, 10 Bing. 482. Valpy v. Gibson, 4 C. B. 837. Benjamin on Sales (4th Am. ed. by Corbin) 52, 102, 270-272.

As to the amount of damages, the verdict may stand, upon the ground that the plaintiff repudiated what Huntoon had done, and that the transaction between the plaintiff and the defendant alone constituted the sale.

Exceptions overruled.