Giligian v. New England Truck Co.

• Decision Date: 26 November 1928
• Citation: 163 N.E. 651,265 Mass. 51
• Parties: GILIGIAN v. NEW ENGLAND TRUCK CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 51

163 N.E. 651

GILIGIAN

v.NEW ENGLAND TRUCK CO.

Supreme Judicial Court of Massachusetts, Worcester.

Nov. 26, 1928.

Report from Superior Court, Worcester County; F. B. Greenhalge, Judge.

Action by Peter Giligian against the New England Truck Company. Verdict for defendant. On report. Judgment for defendant on the verdict.R. E. Marshall, of Marlboro, for plaintiff.

S. M. Salny, for Fitchburg, for defendant.

CARROLL, J.

By a written agreement dated July 19, 1919, the defendant leased a motor truck to the S. A. G. Fruit Company, a Massachusetts corporation. Clause one of the lease stipulated:

‘The lessor hereby leases to the lessee Netco Truck No. 909 for twelve months from date hereof, for the sum of Thirty-seven Hundred Fifty-three dollars, of which the sum of Seven Hundred Fifty-three dollars has this day been paid on account * * * and the balance shall be paid as follows: In eleven notes of One Hundred Seventy-five dollars each and one note of Ten Hundred Seventy-five dollars.’

Clause eleven of the lease provided:

‘If, during the life of this lease, the lessor shall make repairs upon said truck, all bills for such repairs shall immediately fall within the provisions of this lease and must be paid by the lessee before the lessor is obligated to sell said truck to the lessee.’

Under the second clause of the lease the lessor agreed to sell the truck to the lessee for $1 at the expiration of the lease, ‘if all the requirements thereof have been fulfilled.’ By clause three, the lessee agreed to give the lessor ‘as collateral security, his promissory notes aggregating Three Thousand dollars. * * * Said notes, however, shall not be construed as payment until the lessor receives payment in cash.’

All payments were made by the lessee except the last note due July 19, 1920, in the sum of $1,075. By the agreement of the parties ‘six notes were given for different amounts, totaling the balance then due, and the old note was canceled.’ The six notes were finally paid by the lessee, the last note being paid on January 13, 1923. It was uncontradicted that the renewal notes were given ‘in replacement of the old note and not in payment thereof.’

Repairs on the truck were made by the lessor beginning August 11, 1920, which was subsequent to the period of twelve months from the date of the lease but before the payment in full of the renewal notes. The total of the charge from August 11, 1920, to November 24, 1922, was $706.15. Various payments were made by the lessee for these repairs, leaving a balance when the last of the six renewal notes was paid of $317.33.

On April 14, 1922, the lessee mortgaged the truck to the plaintiff. On February 9, 1923, he foreclosed the mortgage and took possession of the truck. It was then placed in a public garage, where it remained until April 1, 1923, when the defendant took possession of it. The action is in tort for the conversion of the truck by the defendant. The judge ordered a verdict for the defendant, and reported the case to this court with the stipulation that if the case should have been submitted to the jury, judgment was to be entered for the plaintiff in the sum of $736.36; but if the action of the court in directing a verdict for the defendant was right, judgment for the defendant was to be entered on the verdict.

Although the contract was in the form of a lease, it was a conditional sale. Hurnanen v. Nicksa, 228 Mass. 346, 349, 350, 117 N. E. 325.Russell v. Martin, 232 Mass. 379, 382, 122 N. E. 447. While there was a special property in the lessee which it could sell or mortgage, the general ownership remained in the defendant and it was not obliged to sell the truck to the lessee until all the requirements of the contract had been fulfilled. Worcester Morris Plan Co. v. Mader, 236 Mass. 435, 438, 128 N. E. 777. One of these conditions was that if repairs were made on the truck ‘during the life of this lease’ ‘all bills for such repairs' must be paid before the defendant was required to ‘sell said truck to the lessee.’ Under the contract of the parties the amount due for repairs ‘during the life of this lease,’ as well as the purchase price, was to be paid before the title passed to the conditional vendee. When the repairs were made the truck had not been paid for, the renewal notes had not been paid, and the lease, as it is called,...