181 Mass. 317 | Mass. | 1902
This is an action of replevin to recover possession of a quantity of brick. The case was tried by a judge of the Superior Court without a jury, and there was a general finding for the plaintiff. The defendant excepted to the refusal of the judge to rule that it did not appear that there was a suffi
Upon this evidence we think that it was competent for the judge to find that there was a sale and delivery to the plaintiff of the bricks that were replevied. The sale was not a sale of bricks to be manufactured but of the. brick in the nine and a half arches in the state in which they were, with the understanding and agreement that they were to be completed by Bailey. At least such could have been found to be the case by the judge. It is true that the plaintiff supposed that he was buying merchantable bricks ready for delivery, and they were described in the bill of sale as at the northerly end, but when the sale was consummated by delivery it turned out to be of unfinished bricks, and to include the nine and a half arches which were there and turned out to be at the southerly end. Until delivery took place, the sale was executory, and it was competent for the parties to agree upon whatever they saw fit as the subject matter of it. The property was bulky in its nature and it was not necessary in order to constitute a delivery that the plaintiff should take manual possession of it. Parry v. Libbey, 166 Mass. 112. Jewett v. Warren, 12 Mass. 300. It was sufficient if the delivery was such as the nature of the property admitted of, and the judge must have so found. Assuming that only merchantable brick were to be paid for, there was nothing in that circumstance to prevent the judge from finding that there was a sale and delivery of the nine and a half arches. Macomber v. Parker, 13 Pick. 175. The description in the writ of the brick as at the northerly end of the kiln was immaterial. It did not affect the identity of the brick that were sold and delivered and that were replevied. The subsequent conduct of the defendant in taking possession of the bricks and completing their manufacture, gave him no rights in or lien on the bricks.
Exceptions overruled.