Cuneo v. Smith

• Citation: 251 Mass. 399,146 N.E. 674
• Parties: CUNEO et al. v. SMITH et al.
• Decision Date: 02 March 1925
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 399

146 N.E. 674

CUNEO et al.

v.SMITH et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1925.

Report from Superior Court, Suffolk County; John D. McLaughlin, judge.

Bill for equitable replevin by Andrew Cuneo and Louis Annacone against Harry Smith and John Langone. On report. Decree for plaintiffs.

Livery stable and garage keepers k8(1)-Conditional vendor of automobile held entitled thereto as against lien for repairs made after default.

Under G. L. c. 255, s 35, where conditional vendee of automobile, at time of delivering it to garage for repairs, was in default in payment due vendor, conditional vendor was entitled to property as against lien for repairs.

Vincent Brogna, of Boston, for plaintiffs.

Samuel Bergson, of Boston, for defendants.

CARROLL, J.

In January, 1921, the plaintiffs delivered to the defendant Langone an automobile, under an agreement of conditional sale, by which title was not to pass to Langone until eleven promissory notes, payable monthly, were paid. The agreement provided that the failure to pay any one note when due terminated Langone's right to the possession of the automobile. The last four notes, due August 7, 1921, September 7, 1921, October 7, 1921, and November 7, 1921, were not paid at maturity. The automobile was duly registered in the name of Langone as owner. It was damaged in an accident, late in November, 1921, and was taken by him to the shop of the defendant Smith, for repairs. Smith had no knowledge that Langone held possession under a conditional sale or lease agreement, and made the repairs. It was found that the automobile exceeded $20 in value. It was agreed that the plaintiffs, in September, 1921, attempted to locate Langone and take possession of the property, but were unsuccessful; that they had no knowledge until after the repairs had been made that the automobile had been brought to Smith's place of business. The four notes above referred to have not been paid. The plaintiffs demanded the return of the automobile, without offering to pay for the repairs. The suit is in equity, for a return of the automobile, it being agreed that the plaintiff can obtain relief in equity ‘if otherwise entitled to prevail.’ The bill was taken as confessed against Langone.

By G. L. c. 255, § 35, it is enacted that against a conditional vendor, the lien of a bailee of the vendee or lessee, on property exceeding $20 in value, for consideration furnished without actual notice of the...