Hurwitz v. Carpenzano

• Decision Date: 29 January 1953
• Citation: 110 N.E.2d 367,329 Mass. 702
• Parties: HURWITZ v. CARPENZANO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 367

110 N.E.2d 367

329 Mass. 702

HURWITZ v. CARPENZANO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1953.

Decided Jan. 29, 1953.

Benjamin S. Freeman, Boston, for plaintiff.

Richard C. Sheppard, Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and SPALDING, JJ.

WILKINS, Justice.

This is an action of tort for the conversion of an automobile, which the plaintiff sold to one Irving Benjamin, who in turn sold it to the defendant. Both parties and Benjamin were dealers. The decisive question is whether a written agreement between the plaintiff and Benjamin was a contract of conditional sale subject to the provisions of G.L. (Ter.Ed.) c. 255, § 13A, as appearing in St.1939, c. 509, § 1. The judge ruled that it was, and found for the defendant.

Section 13A provides: 'No instrument evidencing a conditional sale of personal property shall be valid unless it contains a provision that, in case of repossession and sale of such personal property for default in payment of any part of the total time price, all sums paid on account of such price and any sum remaining from the proceeds of a sale of such repossessed personal property after deducting the reasonable expenses of such repossession and sale shall be applied in reduction of such price, and that, if the net proceeds of such sale exceed the balance due on such price, the sum remaining shall be paid to the vendee; provided, that this section shall not apply to an instrument evidencing a conditional sale of personal property affixed or attached to real estate in any other manner than by an electrical connection.'

The instrument here did not contain this provision, so the question is merely whether the statute applies. Lehan v. North Main Street Garage, Inc., 312 Mass. 547, 550, 45 N.E.2d 945, 144 A.L.R. 1100; Mogul v. Boston Acceptance Co., Inc., 328 Mass. 424, 104 N.E.2d 427. The agreement, dated March 28, 1950, and on a form supplied by the plaintiff, recited that the contract embodied all the terms and conditions of sale. After stating the price and describing the automobile by maker's name, year of manufacture, model, and motor number, the agreement provided, 'Title will not pass to purchaser until payment in full has been made. If final payment is made by check title will not pass until check is paid.'

Other facts appear in the findings of the judge. The plaintiff delivered the automobile to Benjamin, who gave the plaintiff his check, dated March 28,...