Folsom v. Cornell , 150 Mass. 115 ( 1889 )

C. Allen, J.

The testimony of the plaintiff, if believed, was sufficient to show a completed sale and delivery of the property to the defendant at the outset, so that the jury might properly find that the plaintiff was entitled to recover upon the original contract of sale, unless there was an effectual rescission. There are several decisions to the effect that upon a rescission the same formalities must be observed in respect to delivery, in order to revest the title in the original vendor, as are necessary upon an original sale in order to vest the title in the vendee. Miller v. Smith, 1 Mason, 437. Quincy v. Tilton, 5 Greenl. 277. State v. Intoxicating Liquors, 61 Maine, 520. See also Beecher v. Mayall, 16 Gray, 376. Assuming that to be so, we are of opinion that enough was done in the present case to revest the title in the plaintiff. The question arises between the parties themselves. No rights of attaching creditors or subsequent bona fide purchasers are involved. Whether the title revested in the original vendor depends on the intention of the parties, and this intention is ordinarily to be determined by a jury, unless it appears that the evidence would justify a finding but one way. Merchants’ National Bank v. Bangs, 102 Mass. 291, 295, 296. So the question upon this part of the case comes to this: Would the evidence warrant a finding by the jury that there was not a completed rescission of the original sale? We are constrained to hold that it would not. The testimony of the plaintiff himself was as follows: “ It was finally agreed between the parties that the plaintiff was to take the furring away, and the bill rendered was destroyed, and a new bill made for the laths only, which new bill was then paid by defendant. ... It was agreed that the furring on the Kilbourne lot was to be taken away soon, but that that at the farm, being under cover, could remain longer if the plaintiff desired; that the plaintiff thereafter sold the furring to Tillinghast and Terry.” The report states that evidence was afterwards introduced by the plaintiff tending to show that Tillinghast and Terry bought the whole of the furring which had been delivered to the defendant. The defendant testified that it was “ mutually agreed that the contract should be rescinded, and the furring taken away by the plaintiff, that on the Kilbourne lot right away, and that on the farm within a reasonable time.” There being nothing to vary the effect of this evidence, it conclusively appears that the parties intended and understood that the title to the furring should revest at once in the plaintiff, and that the plaintiff acted upon this understanding by proceeding to sell the furring to other purchasers. It simply remained in the possession of the defendant for the time being, on storage as it were. It has often been held, both in this State and elsewhere, that under such circumstances, and as between the parties themselves, no actual or other delivery is necessary, upon a sale, to vest the title in the purchaser. Frazier v. Simmons, 139 Mass. 531, and cases there cited. Philbrook v. Eaton, 134 Mass. 398. Sherwin v. Mudge, 127 Mass. 547. Townsend v. Hargraves, 118 Mass. 325, 332. Turner v. Langdon, 112 Mass. 265. Weld v. Came, 98 Mass. 152. Meyerstein v. Barber, L. R. 2 C. P. 38, 51. Castle v. Sworder, 6 H. & N. 828. Upon the undisputed facts, therefore, there appears to be no escape from the conclusion that the title to the furring revested in the plaintiff, and, if the defendant afterwards appropriated any part thereof to his own use, it was not under his purchase, but it was a conversion. There is no suggestion that any contract was made between the plaintiff and the defendant in relation to it after the rescission, and the circumstances stated negative any inference of an assent on the part of the plaintiff to the defendant’s appropriating it to his own use, since he had sold it to other purchasers and no longer had a right to assent to such appropriation, and therefore an action of contract could not be maintained unless the furring was afterwards sold by the defendant, in which case the plaintiff might have an action of money had and received for the proceeds. Ladd v. Rogers, 11 Allen, 209. Cooper v. Cooper, 147 Mass. 370, 373. In no event could an action for goods sold and delivered be maintained, because the only sale which had ever been made had been rescinded.

When this question arose at the trial, the plaintiff, upon being inquired of by the court, said that he did not desire to amend his pleadings, and the case was submitted to the jury upon the declaration for goods sold and delivered; and the jury found for the plaintiff. The instructions to the jury are not given, and we have no means of knowing what rule of damages was applied. If the verdict rested on the only contract of sale which was ever made by the plaintiff to the defendant, the measure of damages must have been either the price agreed or the reasonable value of the furring at that time. After the verdict, the plaintiff, by leave of court, filed a count in tort for the conversion, and now contends that this will support the verdict. The difficulty in acceding to this view is, that the quantity of furring which was appropriated by the defendant to his own use, if any, may have been different from that which was the subject of the sale, and the measure of damages would also be different, being the value at the time of the conversion. The case was not tried upon the issue of conversion, and we must assume that the instructions to the jury were not adapted to that issue. While, therefore, the amendment might properly be allowed, its allowance cannot have the effect to save the verdict.

The defendant further contends that the Superior Court had no jurisdiction of the action, because the plaintiff’s bond upon the appeal from'the judgment of the District Court was not filed in season. The statutes require that such bond shall be filed within twenty-four hours after the judgment, unless further time is given. Pub. Sts. c. 155, § 29; c. 154, § 52. St. 1882, c. 95, § 1. It has been heretofore determined, from reasons of public policy, that the statutory requirement of a bond, instead of a recognizance, must be complied with, and cannot be waived (Santom v. Ballard, 133 Mass. 464); and that the bond must have a surety (Henderson v. Benson, 141 Mass. 218); but other defects in the bond have been held not to be fatal, unless seasonably objected to. Wheeler & Wilson Manuf. Co. v. Burlingham, 137 Mass. 581. In the present case, the bond was in proper form, and had two sureties who were duly approved. It also appears by the certificate, which takes the place of a record of the proceedings before the District Court, that judgment was rendered for the plaintiff for $31.65 on the 26th of March, 1888 ; that the defendant appealed, and had until April 1, 1888, to file a bond; and that the plaintiff also afterwards appealed, but there is no memorandum that an extension of time for filing his bond was given to him. He however filed his bond on March 31, 1888, and it was approved, apparently on the same day, and this was before the time had expired within which the defendant might file his bond. This being done, the defendant took no further steps, and the plaintiff entered the appeal, and the case in due time proceeded to trial before the jury, without objection from the defendant; and after the verdict against him, he for the first time raised the objection to the want of a seasonable filing of the plaintiff’s bond. Where there is an appeal by both parties, the fact is stated in the record, but both appeals need not be separately entered and prosecuted. Davidson v. Boston Maine Railroad, 3 Cush. 91, 101. See also Shattuck v. Woods, 1 Pick. 171, 176, note, and 3 Pick. 267. Upon the trial of the appeal by either party, the whole case is open and tried anew ; and in the present case the defendant had the same benefit of a new trial in the Superior Court that he would have had if he had taken all the requisite steps and entered his own appeal. It seems probable, also, that the District Court may have considered that the extension of time granted to the defendant before the plaintiff claimed an appeal would also enure to the benefit of the plaintiff, since so soon afterwards the plaintiff’s bond was approved without apparent question. It also seems probable that the defendant omitted to pursue his own appeal because he found that he would get the same benefit from the plaintiff’s appeal as from his own, and it would be no violent strain to infer his assent in the District Court to the plaintiff’s filing the bond as he did, for the very reason that thereby further steps by himself became unnecessary. Under these circumstances, the case bears some resemblance to Granger v. Parker, 142 Mass. 186, where we held that a party who had had the benefit of an appeal taken by himself could not, after judgment rendered, be heard to object that there was a want of jurisdiction by reason of his own failure to comply with the formal requirements of the statute, and that the sureties upon his bond were also precluded. In the present case, the plaintiff and his sureties would be bound upon their bond, and the Superior Court might properly determine to take jurisdiction of the appeal under the circumstances stated. We cannot say that such determination was unwarranted.

Bxeeptions sustained.