Gorham v. Holden

• Decision Date: 22 March 1887
• Citation: 9 A. 894,79 Me. 317
• Parties: GORHAM v. HOLDEN.
• Court: Maine Supreme Court

9 A. 894

79 Me. 317

GORHAM

v. HOLDEN.¹

Supreme Judicial Court of Maine.

March 22, 1887.

On report from superior court, Cumberland county.

Trover for the alleged conversion of a piano. The opinion states the material facts.

E. S. Ridlon, for plaintiff. Symonds & Libby and A. B. Holden, for defendant.

HASKELL, J. The plaintiff pretended to lease to the defendant's testatrix a piano of the stated value of $500, for the term of three months, upon a cash payment of $200, and so long thereafter as payments of $50 should be made at the end of each ensuing three months, until the full sum of $500 should be paid, with interest at 7.3 per cent., when the testatrix should receive a conveyance of the piano. The testatrix, at the date of the pretended lease, December 15, 1872, paid $200, and received the piano. Installments were indorsed upon the pretended lease until October 9, 1874, when, together with the first payment, they aggregated $500. The testatrix retained the piano until her death, in June, 1884, nearly 10 years, without any request by the plaintiff either for payments of interest or for surrender of the piano. That came to the defendant as executor of the supposed vendee, and, after demand for the same by the plaintiff, the defendant sold it for $125. The pretended lease contains all the necessary stipulations of a conditional sale. The price, and when and in what installments the same was to be paid, are all stipulated, and the property sold was delivered to the vendee, to become hers when she had fully paid for the same. The sale may have been upon condition precedent, but that the plaintiff could waive if he saw fit. Whether he has done so is a question of fact to be determined from the evidence in the case, (Farlow v. Ellis, 15 Gray, 229;) and, if the condition has been waived, the title has passed to the vendee, (Seed v. Lord, 66 Me. 580; Stone v. Perry, 60 Me. 48; Whitney v. Eaton, 15 Gray, 225.)

For nearly 10 years after the plaintiff had received the full price for his piano, he allowed the vendee to retain it without requesting the payment of interest, or pretending any title to it, and not until after the death of the vendee did he make any claim to the same. Considering that indorsements were made by the parties, upon the agreement between them without any mention of interest, and that the stipulated price for the piano had been fully paid for so long a period prior to the vendee's death, during which time she was allowed to retain...