Beecher v. Mayall , 82 Mass. 376 ( 1860 )

Dewey, J.

If the jury found the facts to be such as are stated in the bill of exceptions, as the evidence of a sale to Sherman & Mayall, and a resale, on surrendering to the plaintiff all the rights acquired by the original contract of sale, any further evidence of delivery, by subsequent acts of the parties, was unnecessary. If upon the resale it was stipulated that Sherman & Mayall were to proceed to repair the property, and were to have the possession for that purpose merely, their possession would be the possession of the plaintiff. The instruction asked by the plaintiff upon this point was substantially correct.

The ruling of the court, as given to the jury, although perhaps not so intended, was stated with such additional qualifications and requirements as would naturally lead the jury to suppose something more to be necessary, beyond the facts which it is stated the evidence tended to prove, to authorize them to find a valid transfer of the property to the plaintiff, divested of all the rights to the same acquired by Sherman & Mayall by the sale to them. Thus the instructions “ that slight evidence of delivery would be sufficient,” and “ that the jury might presume such delivery from subsequent acts of control and possession on the part of the plaintiff, if proved,” assumed that something was necessary to be shown, beyond the contract to give up the sale and retransfer the property to the plaintiffs and keep the possession of the same for the purpose of making repairs in pursuance of the condition of the resale to the plaintiff.

For these reasons, the court are of opinion that the verdict should be set aside and a new trial had.

The court properly excluded the evidence offered by the plaintiff, that various persons had applied to the plaintiff for the purchase of these articles subsequently to the transactions and agreements with Sherman & Mayall, and that such persons had treated with the plaintiff as the owner of the same. This evidence was incompetent. Exceptions sustained.