Treefull v. Mills

234 Mass. 141 | Mass. | 1919

De Courcy, J.

On May 24, 1909, Albert Jackson purchased on lease or conditional bill of sale from the American Soda Fountain Company (hereinafter called the Fountain Company) a soda fountain, fixtures, and soda water apparatus. The consideration was $300, paid in promissory notes of $10 each, maturing at intervals of one month. Until all the notes should be paid the title to the property was to remain in the Fountain Company, "who shall have the right, in case of non-payment of either of said notes, without process of law, to enter and retake, immediate possession of said property, wherever it may be, and remove the same.”

On May 31, 1911, Jackson made an assignment of all his property for the benefit of creditors to the defendant, who at once took possession of the property in suit. At that time Jackson had defaulted on several of the lease notes. These had been sent to the Adams Express Company for collection as they became due. On June 7, 1911, the plaintiffs arranged with the Fountain Company to purchase the fountain and fixtures in question, and forwarded a check to cover the agreed price. They immediately informed the defendant of what they had done; and on June 9 showed him the receipted bill of parcels dated June 8, which the Fountain Company had sent to them. Meanwhile the defendant on June 8 went to the office of the express company, and paid the note which matured June 2. According to his testimony, he agreed to pay the lease notes then unpaid, if the agent would procure them from the Fountain Company, to which they had been returned; and the agent assented. This agent transmitted the money paid, and on June 14 notified the Fountain Company that Jackson requested that it immediately forward all notes it had against him. On June 9 the plaintiffs showed the receipted bill of parcels to the defendant, and told him they wanted to take away the soda fountain. Upon his refusal, this action was brought for the alleged conversion of the property.

From the foregoing it is clear that the trial judge was warranted in refusing to give the defendant’s first request, and in finding for the plaintiffs. They had succeeded to the title and right of possession of the Fountain Company. The defendant’s assignor, Jackson, was in default on his payments. The alleged “tender” of the defendant was incomplete; and the promise of the agent of the express company, who merely had the note due June 2 for collection, could not bind these plaintiffs, who had then succeeded to the title of the Fountain Company. It is unnecessary to consider whether he ever had authority to bind that company by a promise to procure from it the other unpaid notes.

The second ruling requested by the defendant has not been argued. However, it was properly refused, because the rights of the parties were vitally affected by facts which occurred subsequent to the execution of the lease and notes. The defendant was not harmed by the refusal to give his third and fourth requests, as we have assumed both in his favor. The others were reftised rightly. Finally, there was no error in admitting the bill of parcels in evidence. It identified the goods which the plaintiffs had bought from the Fountain Company, and was a formal recognition of the terms of the oral contract which had been made.

Exceptions overruled.