Higgins v. Chessman , 26 Mass. 7 ( 1829 )

Parker C. J.

delivered the opinion of the Court. The decisión of this case depends upon this question, whether by virtu» of the transactions between Higgins and Chessman the latter became owner of one fourth of the vessel called the Registei. ®he was purchased by the testator in consequence of a preexisting bargain between him and the defendant, as proved by the letters and other evidence in the case. When the testator purchased, he might have taken a bill of sale in the name of Chessman as well as himself. The mode pursued created a necessity of a conveyance from him to the defendant, and in order to charge the defendant with the price of one fourth, he should have offered a conveyance to him, or at least have been ready to deliver it when asked for.

It is urged by the counsel for the plaintiff, that the certificate signed by Chessman on the 7th of April is evidence, not of a contract to purchase only, but of a complete executed sale. This would have that effect between the two parties to the contract, if it were so intended ; for when a bargain is made for a chattel, and the price is paid, the contract is executed, so that the vendee may maintain trover for the chattel against the vendor, upon demand and refusal to deliver. But if at the time of the contract it is understood and intended that some other act is to be done to complete the sale, such as a formal delivery or a bill of sale, the transfer is not complete until such act is done. It seems evident, from the facts reported, that it was intended and expected a bill of sale should be given by Higgins to Chessman. It was frequently asked for, and when the money was paid by Chessman, a promissory note was given for it by Higgins; which would not have been done, if the parties considered the transfer executed by the payment of the money and the certificate of Chessman.

There are facts testified to by witnesses in regard to the conduct and declaration of both parties, which seem to be inconsistent with the grounds taken by either. Chessman acted in some respects as if owner. ' He was on board the vessel, Speaking of repairs, &c. and in the spring following, said he should not.have taken any share of the vessel, had he not expected that the witness would have gone in her. On the other * hand, the conduct of Higgins is inconsistent with any supposition on his part, that Chessman had become an owner. He refused to deliver a bill of sale, and he said, at a late period, that Chessman had .nothing to do with the vessel, but that when he got well he would go up to Boston and settle that matter. It was a question for the jury, and they might find that it was not intended to transfer till the bill of sale should be made and delivered.