Briggs v. Hervey
| Decision Date | 06 January 1881 |
| Citation | 130 Mass. 186 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Helen M. Briggs v. William H. Hervey & another |
Exceptions sustained.
J. B Richardson, for the defendants.
H. E Swasey, (Horace W. Fuller with him,) for the plaintiff.
This is an action of trespass quare clausum. The defendants attempted to justify under a license contained in a written agreement signed by the plaintiff, in the nature of a lease of certain articles of household furniture. The plaintiff's evidence tended to show that, on June 11, 1877, she bargained with the defendants for a carpet, sofa and four chairs selected by her, which the defendants were to deliver at her house; that she paid $ 31.50 and signed the agreement to take effect upon such delivery; that the defendants sent to her house a carpet, sofa and four chairs, but the sofa and chairs were not those selected by her; and that she thereupon returned them to the defendants, and offered to keep the carpet and pay the difference between its price and the $ 31.50 paid by her as aforesaid. She contended that the agreement never became operative. The defendants contended that the sofa and chairs delivered were the same selected by the plaintiff; that the agreement became binding upon such delivery, and had not been rescinded or waived by them.
The plaintiff testified, among other things, that "no demand had been made upon her or notice given to her for anything from June 11, 1877, until February 28, 1878, the time of the alleged trespass." This evidence was material. By the agreement, the plaintiff was to make payments of eight dollars on the 11th of each month. If the defendants made no claim, and took no steps to assert their rights under the agreement for more than eight months, this inaction, if unexplained, would naturally lead to the inference that they did not consider the agreement as binding, and would tend to support the plaintiff's claim. To meet this evidence, the defendants offered to show "that during said time they had sent letters to her, properly addressed to her at her residence in Boston, demanding payment of the rent or pay set forth in said lease contract; that said letters were sent by mail, duly stamped, with a request printed on the envelope that the letters should be returned to them, giving their proper address, if not delivered to the person...
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Lawver v. Globe Mut. Ins. Co.
...and is strongly supported by the following authorities: Rosenthal v. Walker, 111 U.S. 185, 4 S.Ct. 382, 28 L. Ed. 395; Briggs v. Harvey, 130 Mass. 186; Kenny v. Altvater, 77 Pa. 34; Meyer v. Krohn, 114 Ill. 574, 2 N.E. 495; Eckerly v. Alcorn, 62 Miss. 228; Austin v. Holland, 69 N.Y. 571, 25......
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