Jillson v. Wilbur , 41 N.H. 106 ( 1860 )

Nesmith, J.

The first inquiry presented by this ease will be directed to the character aud extent of the agreement of the plaintiff with Timothy Pickering, made on the 11th of February, 1850. It seems now to be a well established rule of law, that a sale and delivery of goods, on condition that the purchase money be first paid or secured, does not pass the title to the vendee, and that the vendor has the right, in case the condition be not performed, to repossess himself of the goods. Actual payment of the stipulated price becomes a condition precedent to the investment of title. The possession of the vendee is a limited one, qualified by the terms of the contract, and conferring no right or authority to transfer title to another, till the requisite act be done, or the condition of the contract be first performed. The vendor retains the property in the goods; the vendee becomes a bailee for a specific time and purpose. Long on Sales 109; Ch. on Cont. 392, note; Hill, on Sales 116; Sanborn v. Coleman, 6 N. H. 14; Sargent v. Gile, 8 N. H. 325; Porter v. Pettin-gill, 12 N. H. 299; Marston v. Baldwin, 17 Mass. 606; Ayers v. Bartlett, 9 Pick. 156 ; Dresser Manf. Co. v. Wa-tersion, 3 Met. 9 ; Coggill v. Railroad, 3 Gray 545. "When the condition is waived, and how, is well discussed in Sargent v. Metcalf, 5 Gray 306.

In this case Pickering was a bailee for hire, for an unlimited time, with the right to purchase the watch at a specific price. The contract by which ho gained the right to purchase gave him no right to sell to another, nor in any manner enlarged his right as bailee. He had the mere possessory right, which could not communicate title to another. It is very plain that a man who has no authority to sell, cannot, by making a sale, transfer property to another. Ch. on Cont. 842. A lessee of chattels, or a bailee for a special purpose, can pass no title to a vendee, without authority from the bailor or lessor.

In 1852 Pickering died, having paid nothing either toward the price of the watch or for its use. Therefore, by the terms of his contract with the plaintiff, no title had vested in him or his estate. The watch, therefore, legally constituted no part of the estate of Pickering. Of course, the court of probate, upon his death, had no jurisdiction over it, as the property of the deceased, nor could a decree of that court affect the rights of the true owner. The plaintiff’ stands here as a stranger to the proceedings of the court of probate, .is not a party to them, nor, as a privy, bound by them. Nor could the wife of the defendant, as administratrix, or in her private capacity, acquire a property in this watch, without first discharging the plaintiff’s claim upon it, by fulfilling her husband’s contract with him, of which she had due notice. The legitimate power and action of the court of probate was limited by statute law to the proper settlement and distribution of the estate of Pickering alone. Morse v. Presby, 25 N. H. 299; Wilson v. Edmunds, 24 N. H. 517 ; Tebbetts v. Tilton, 11 N. H. 275. Under the authority of these decisions, the court properly rejected the proceedings of the court of probate, as tending to constitute a defence to this action.

The case finds that the defendant’s wife, in 1856, sold and converted to her own use the watch in suit. This, in law, was a wrongful conversion, and made husband and wife, upon their intermarriage, liable for its value in this form of action. The husband -is liable for torts of the wife, and the husband should be joined; and for her wrongful acts before marriage they should be joined. Head v. Burton, 5 C. & P. 484; Sargent v. Gile, supra; Whitmore v. Delano, 6 N. H. 545. The sale amounts to a conversion. 4 Taunt. 127. No previous demand was necessary. Galvin v. Bacon, 2 Fairf. 28 ; Emerson v. Fiske, 6 Gr. 200; Loischman v. Machar, 2 Stark. 34. The sale must be relied on by the plaintiff, as constituting a wrongful conversion of the watch, rather than the demand made in September, 1858.

We are of the opinion there should be

Judgment on the verdict.