Bullard v. Wait , 82 Mass. 55 ( 1860 )

Metcalf, J.

The horse, when the plaintiff bought it of Turner, was in Field’s livery stable, where it had been previously kept; and the plaintiff, after paying for it, requested Field to keep it for him and feed it on hay, and promised to pay him for keeping and feeding it. Field thereupon removed the horse from the stall which it had before occupied; put it into another which was more convenient for feeding it with hay; and so fed it, according to the plaintiff’s request. The plaintiff afterwards paid Field for keeping the horse, up to the time when the defendant attached it. These facts, we think, fully warranted the instruction to the jury, that the sale was valid, as against Turner’s creditors, if it was not made to defraud them. Though it was made on the Lord’s day, yet as it was made after sunset it was not prohibited by the Rev. Sts. c. 50.

The only question argued is, whether there was such a constructive delivery of the horse as rendered the sale valid against third persons. And the decision in Tuxworth v. Moore, 9 Pick. 347, seems to us to be conclusive in the plaintiff’s favor. That case has been repeatedly recognized as correctly adjudged. See Whipple v. Thayer, 16 Pick. 28; Carter v. Willard, 19 Pick. 8; Appleton v. Bancroft, 10 Met. 236.

Evidence was rightly admitted that Field changed the horse's stall, because it tended to prove that he had consented to keep the horse for the plaintiff, according to his request. For any other purpose we suppose that evidence was immaterial. Elmore v. Stone, 1 Taunt. 460. Blackb. Sales, 32.

Exceptions overruled.