Carter v. Kingman , 103 Mass. 517 ( 1870 )

Chapman, C. J.

It appears that Clark received the goods from the plaintiff with the right to use them at the place mentioned, and that they were to become his on the fulfilment of certain conditions. Among these conditions were the following, namely, that he was “ not to sell, convey, underlet or remove the articles from where they are leased, without first getting the consent” of the plaintiff, and the property was not to become his till he paid for it. By the sale and delivery of the property to the defendant in violation of these conditions, he did not vest in the defendant any right to it as against the plaintiff. Coggill v. Hartford & New Haven Railroad Co. 3 Gray, 545. And the plaintiff may maintain this action without a demand. Gilmore v. Newton, 9 Allen, 171. The doctrine applicable to an unconditional sale and delivery of goods, which is voidable by the vendor on account of the fraud of the vendee, as in Hoffman v. Noble, 6 Met. 68, does not apply to a case like this. TSToi is this case like that of Day v. Bassett, 102 Mass. 445; for, though in that case the vendee took the property to use, but not to have title till he should pay a certain sum, and sold the property before malting the payment, yet his vendee did not remove the property, or change the position or use of it, and the money was tendered by him to his vendor before default of payment.

Exceptions sustained.