Hart v. Boston & Maine Railroad

The evidence seems to be all one way, and to prove that the iron was to be paid for in cash upon delivery to the purchaser, and that both parties to the contract understood there was no delivery; that the possession of the iron, which the plaintiff allowed Lepsitz to have, was for the purpose of ascertaining the quantity and, having it in readiness for delivery when payment was made. After the iron was loaded on to the car, both parties understood that the plaintiff had control of it — that the defendants' possession of it for the time being was held in behalf of the plaintiff. If it does not appear from this evidence as matter of law that the title never passed to Lepsitz, the jury certainly might properly so find as matter of fact. Ferguson v. Clifford, 37 N.H. 86; Paul v. Reed, 52 N.H. 136; Towne v. Davis, 66 N.H. 396. It not being a sale of personal property to be delivered immediately and paid for at a future date, with a condition that the property should remain the vendor's in the meantime, the provisions of the statute as to conditional sales (P. S., c. 140, ss. 23-26) have no application. The motions for a nonsuit and the direction of a verdict in favor of the claimants, and for an instruction to the jury embodying the above mentioned statute law, were properly denied.

The remark of the plaintiff's counsel in the closing argument, to which the claimants excepted, bore upon the question of their good faith in the transaction with Lepsitz, and was not objectionable.

The propositions of law stated in the claimants' first and second requests for instructions, if correct, had no application to the case. The question was whether the title passed to Lepsitz by reason of a delivery of the iron to him. Unless it did, his assignees, the claimants, got no title. The bill of lading, or shipping receipt, and the agreement of Lepsitz and the claimants growing out of and concerning it, would have no effect upon the plaintiff's title. If the title passed to Lepsitz, the instructions would be unnecessary.

The defendants declined to deliver the iron to the plaintiff. They unlawfully detained it from him. Replevin is maintainable in such a case. P. S., c. 241, s. 2. Woodward v. Railway, 46 N.H. 524, cited by the claimants in support of their third request for instructions, was decided before the statute was passed authorizing the maintenance of an action of replevin for the unlawful detention of personal property. Laws 1873, c. 21.

Exceptions overruled.

All concurred.

MEMORANDUM.

Mr. Justice REMICK resigned his office on the thirtieth day of November, 1903, the resignation taking effect on the first day of January, 1904.

On the fourth day of January, 1904, Mr. JOHN EDWIN YOUNG was appointed an associate justice of the court to fill the vacancy occasioned by the resignation of Mr. Justice REMICK.