Tuckerman v. Floyd , 106 Mass. 72 ( 1870 )

Ames, J.

The alternative allowed to the defendant, to pay the agreed price or to forfeit what he had purchased, was not fully complied with by merely giving a bill of sale of one half of the machine. If the parties had only contemplated a literal forfeiture in case of nonpayment, the defendant’s title would have terminated by operation of law, and there would have been no occasion for a bill of sale, or any formal reconveyance. But it appears to us that the alternative was really intended for the benefit of the defendant, by giving him the option to pay the money or to return the property If his final determination should be not to pay the money, he wa» bound to make an effective return of the property, such as would replace the plaintiff in his former position in relation to it. As the effect of that determination would be that the joint ownership should continue, it may well be that a formal redelivery of the chattel would not be necessary, but it should at least appear that the reconveyance would restore the plaintiff to the same title in it that he had previously enjoyed. The facts as reported do not make it certain that the defendant had not disabled himself, by his own act, from returning the property to its former condition of ownership, and thereby lost the benefit of the option allowed by the contract. Until the end of the six months he had the right to dispose of the machine as he pleased. He may have removed it to some distant part of the country; he may have sold it to a third person, or mortgaged it to a creditor; he may have injured it by careless use, or damaged it by alterations or attempts at improvement; in any of which cases, the bill of sale would be ineffectual to replace the plaintiff in statu quo. The plaintiff, without some assurance upon this point, was under no obligation to give up the note, and it cannot be said that the facts reported amount to such an acceptance of the bill of sale as to relieve the defendant of his liability. In the instructions to the jury these considerations appear to have been overlooked, and therefore the

Exceptions are sustained.