Levinson v. Connors , 269 Mass. 209 ( 1929 )

Rugg, C.J.

This is an appeal by the defendant from a decree in favor of the plaintiff in a suit in equity. There is no report of the evidence. There is no finding of the facts. The record consists of the bill as amended, the answer, the final decree and the appeal. The only question presented is whether as matter of law the decree could have been entered on the pleadings. Brogna v. Commissioner of Banks, 248 Mass. 241, 243. See O’Brien v. Gove, 208 Mass. 325.

Summarily stated, the allegations of the bill are that the plaintiff on December 9, 1927, purchased of the defendant certain chattels described in a bill of sale of that date, copy of which is annexed; that at the request of the defendant the plaintiff permitted the chattels to remain where they were and to be used by the defendant until such time as the plaintiff might demand possession of them; that the plaintiff had made such demand and the defendant had refused to permit the plaintiff to take'them but kept the room locked where most of them were and denied access thereto to the plaintiff, and had removed some of them to another place. The prayers were for an injunction against removal, for a mandate to require the defendant to give to the plaintiff access to the chattels, and for general relief. By the final decree relief was granted substantially as prayed for.

Both by the common law and by the sales act, title to specific goods in a deliverable condition passes as between the parties by the contract of sale without actual or constructive delivery or payment of price, unless a different intention is shown." John B. Frey Co. Inc. v. S. Silk, Inc. 245 Mass. 534, 539. G. L. c. 106, § 21, Rule 1. The defendant has argued the case on the theory that the bill of sale, although absolute in form, was intended as security for a loan and not as an absolute transfer of title. There is nothing in the record to support such a contention. It cannot be considered.

The plaintiff filed a motion to dismiss the appeal on the ground that it raised no question of law. See Boston, petitioner, 223 Mass. 36, and cases there collected. Van Ness v. Boinay, 214 Mass. 340, 343. Commonwealth v. Dascalakis, 246 Mass. 12, 34. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 136. It is not necessary to decide the merits of this motion. Since the consequence to the cause of action must be the same in either event, the case is disposed of on the substantive law.

Motion dismissed.

Decree affirmed with costs.