Allin v. Whittemore
| Decision Date | 20 May 1898 |
| Citation | 50 N.E. 618,171 Mass. 259 |
| Parties | ALLIN WHITTEMORE v. WHITTEMORE. WHITTEMORE v. ALLIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
COUNSEL G.L. Mayberry, for Horatio N. Allin.
Elder Wait & Whitman, for Charles Whittemore.
These are two actions,--one for the price of horses alleged to have been sold; the other a cross action for the board of the same horses, etc., from the time of the alleged sale and delivery to the date of the writ. The plaintiff, Allin, testified to an agreement with one Hayden, a trainer employed by the defendant, Whittemore, and speaking on his behalf, by which Whittemore was to take the horses at $450 a head, subject to adjustment as to more than half of them, which were to come from the West, and had not been seen by the defendant. The plaintiff testified that this agreement was stated by Hayden to the defendant, and that the latter said, "Yes; that is as I understand it; whatever Frank agrees to I will carry out;" and that the plaintiff said, "The stock is yours." Afterwards the horses were delivered to the defendant. This story was contradicted, but Allin got a verdict in both suits, and the cases are here on exceptions. Those in the suit against Allin are to the admission of evidence also excepted to in the suit by him, so that all the questions are raised in the suit by Allin for the price under the alleged sale.
1. The first exception is to allowing another witness to corroborate the plaintiff's account of the conversation between himself and Hayden. The plaintiff's testimony just stated, as to what the defendant said later, is evidence that Hayden's agreement was either authorized or ratified, and therefore the evidence was competent.
At a later date the plaintiff had some money from the defendant for which he gave a written receipt: "Received of Mr Charles Whittemore, Esq., the sum of eleven hundred dollars as a loan, and horses to be considered as security when delivered unless sale is made." It is suggested, also, that the conversation contradicts the writing, and rulings were asked to the effect that no sale could be shown of earlier date than the writing, and that by its terms the delivery of the horses was as collateral security, and not in pursuance of a sale. Such is not the effect of the document. What it does purport to establish is that the money is received as a loan, and that, if for any reason the sale does not go through, the horses, which otherwise will be held by Whittemore as purchaser, shall be held by him as security. The writing does imply an...
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