Harding v. Eldridge

• Decision Date: 23 May 1904
• Citation: 71 N.E. 115,186 Mass. 39
• Parties: HARDING v. ELDRIDGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 39

71 N.E. 115

HARDING v. ELDRIDGE.

Supreme Judicial Court of Massachusetts, Barnstable.

May 23, 1904

COUNSEL

Heman A. Harding, for appellant.

Chas Basset and H. H. Baker, for defendant.

OPINION

BRALEY J.

The plaintiff must prevail on the strength of his own title, and if, under the alleged sale, the title of the defendant did not pass to him, he never gained a legal right of ownership in the piano, and cannot maintain this action.

When the note was negotiated, and up to the date of the service of the writ of replevin, the instrument remained in the possession of the defendant, and there never has been any physical delivery of it either to the plaintiff or his predecessor, the payee of the note under whom he claims, and the rights of the parties must be determined solely by the written agreement. In construing this agreement a distinction must not be forgotten--that it is not a present sale, like the case of Carter v. Willard, 19 Pick 1, where, as between the parties, no delivery would be required to transfer the title from vendor to vendee--but the intention here was to give and receive collateral security in some form for the payment of the note.

An examination of the contract shows that it is a negotiable promissory note, in the usual form, combined with a statement of pledge that the piano was given as collateral security for its payment, joined with a power of sale. It may be treated as an agreement consisting of two parts--one, the making of the note; the other, the agreement giving security for its payment--though for convenience both are united. No further separation or distinction seems to be justified, for the power of sale is not a mere naked order or license to take the piano if the note is not paid, and sell it, but is appendant to the superior right, to enforce which it is given; and that such was the understanding of the parties is manifest from the form of the proceedings to foreclose, as the sale was not made until after written notice to the defendant, and in strict conformity to the power by which the property could be converted. By recording this contract its terms were not changed, nor did this act impress upon it the character of a mortgage. Williams v. Nichols, 121 Mass. 435, 436. Neither can the fact of record be taken as amounting to a constructive delivery of the property. Burge v. Cone, 6 Allen, 412. Though no particular or set form of words are required to constitute a mortgage of personal property, yet it must contain language from which the intention of the parties to enter into such an obligation is not only apparent, but the terms employed by them are legally sufficient to carry out such purpose.

In the agreement under consideration none of the elements of a personal grant are found, as the writing signed by the defendant implied neither a present conveyance of the property, nor of a defeasance providing that if the debt was paid the title should revert in her as mortgagor; and for this reason the case cannot be considered as falling within that class of cases in which a formal bill of sale, as between the parties, has been held to constitute a mortgage. Homes v. Crane, 2 Pick. 607; Thompson v. Dolliver, 132 Mass. 103; Copeland v. Barnes, 147 Mass. 388, 18 N.E. 65.

But if the transaction cannot be classed as a mortgage, it is the contention of the plaintiff that it can be treated as a pledge. In the language used, no direct, formal, personal pledge is made; but, giving to the words 'having pledged' the meaning which they naturally import, it may be said that there was a present intention to furnish security, which was executed to the extent of signing the combined agreement, and, if this had been followed by a delivery, the bailment would have been complete. Radigan v. Johnson, 174 Mass. 68, 54 N.E. 358.

Beyond the statement that no actual delivery was made, which term must be considered as meaning a transfer of possession, the exceptions are silent; and whether any further steps were taken by the pledgee, such as taking formal, manual possession of the piano, and then leaving it with the pledgor as his agent, is left to conjecture, and cannot be supplied in the decision of the case, which must be left where the parties are content to rest it, with no delivery of a chattel capable of being physically transferred, and the plaintiff's title rests alone on a constructive possession arising out of the paper transaction.

It is uniformly held that by a contract of pledge only a special title passes to the pledgee, which depends on actual possession, while the general right of property remains in the pledgor, and, in order to hold and preserve his lien there must be not only a physical delivery, where the chattel can thus be transferred, but...