Jewett v. Keystone Driller Co.

• Decision Date: 03 April 1933
• Citation: 185 N.E. 369,282 Mass. 469
• Parties: THOMAS G. JEWETT, Jr., Inc., v. KEYSTONE DRILLER CO. SAME v. CONYNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 469

185 N.E. 369

THOMAS G. JEWETT, Jr., Inc.,

v.KEYSTONE DRILLER CO.

SAME

v.CONYNE.

Supreme Judicial Court of Massachusetts, Bristol.

April 3, 1933.

Exception from Superior Court, Bristol County; Frederick W. Fosdick, Judge.

Actions by Thomas G. Jewett, Jr., Incorporated, against the Keystone Driller Company and George R. Conyne, respectively. Findings for defendants, and plaintiff brings exceptions.

Exceptions overruled.

O'Brien & Bentley, of New Bedford, for plaintiff.

Sibley, Blair & Young and Arthur J. Young, all of Worcester, for defendants.

CROSBY, Justice.

In these actions of tort the declaration in each case alleges conversion by the defendant of one model 4-25 front crawler gasoline shovel, the property of the plaintiff. The defendant in each case filed a general denial, and the defendant in the first case, in addition thereto, filed a further answer, as follows: ‘The defendant says that the shovel referred to in the plaintiff's declaration was furnished to the plaintiff by the defendant under an agreement dated June 17, 1925, a copy of which is hereto annexed marked ‘A’; that in and by the terms of said contract the title and right of possession remained in the defendant until full compensation therefor had been paid by the plaintiff, in accordance with the terms of sale; that the plaintiff failed to make payments as stipulated in the said agreement and the defendant therefore had the right to remove the said shovel as its property.'

On June 17, 1925, the plaintiff by a written contract made in Worcester in this commonwealth bought from the defendant company through its agent, George R. Conyne, the gasoline shovel above referred to. The terms of the contract so far as material were as follows: The defendant company agreed to furnish f. o. b. Manchester, New Hampshire, to the plaintiff at the price of $7,735 the gasoline shovel with starter including essential equipment. The purchase price was to be paid as follows: $200 with the order, $2,335 on arrival of machine at destination, and the balance of $5,200 in four notes of $1,300 each, payable in two, four, six and eight months respectively, with interest at six per cent., at the Merchants National Bank in New Bedford, in this commonwealth. All the notes were dated July 13, 1925, and signed in the name of the plaintiff corporation by Thomas G. Jewett, Jr., treasurer. The last two notes were due January 13, 1926, and March 13, 1926, respectively. The contract provided that the title and right of possession of all the equipment sold should remain in the company whatever be its mode of attachment to the realty or otherwise until fully paid for in accordance with the terms of sale; that upon failure of the purchaser to make all payments as stipulated in the contract, the company ‘shall have the lawful right to retain any or all partial payments which have been made and be free to enter the premises where said equipment may be located and to remove the same as its property without prejudice to any further claims.’

The plaintiff was a Massachusetts corporation with a usual place of business in New Bedford. The defendant Keystone Driller Company, hereinafter referred to as the company, was a corporation having a usual place of business in the state of Pennsylvania and was represented in this commonwealth by the defendant Conyne, who was its agent in charge of its business in New England. The gasoline shovel was duly delivered to the plaintiff at Manchester, New Hampshire, in accordance with the terms of the contract. The plaintiff made all payments and complied with the terms of the contract, except as to the payment of the last two notes of $1,300 each, which left a balance of $2,600 to be paid with interest, expenses and charges. There was correspondence between the plaintiff's attorney and the defendant Conyne with reference to an extension of time for payment of the last two notes, but the company refused to extend the time beyond April 13, 1926, and the notes due on that day were not paid. Thomas G. Jewett, Jr., the president and treasurer of the plaintiff corporation, testified that on May 28, 1926, he went to Conyne's place of business in Worcester and tendered to him a certified check for $2,645.60; that Conyne refused to take the check and told him that he had sold the shovel. Conyne testified that on May 10, 1926, he went to Manchester where the shovel was stored, took possession of it, and on May 12 shipped it by rail to one De Marco at New Haven, Connecticut, for storage. He denied that Jewett ever tendered him any check or money. Jewett, on cross-examination, testified that other than to offer the check he never made any payment or offer to pay the last two notes; that when he went to Conyne's office on May 28 he had the check for $2,645.60; that the rate of interest on the two notes was six per cent. and would amount to about $130 so that the check tendered would be insufficient to cover the principal of the notes and interest on the date he made the tender. Conyne testified that when he took possession of the shovel on May 10 he did it under the terms of the conditional sales agreement, and gave no notice to the plaintiff that he had taken such possession; that he took an assignment of the contract and the notes two days later; that he shipped the shovel to De Marco, who was a contractor in New Haven and had space to store it, because he believed it might later be sold in that locality; and that on June 4, 1926, he sold it to De Marco. The evidence was conflicting as to whether the sale was made before June 4. The plaintiff's requests numbered eleven and twelve were granted and the finding in each case was for the defendant; it is therefore apparent that the judge found the company did not sell the shovel before the plaintiff's right to redeem under G. L. (Ter. Ed.) c. 255, § 11, had expired.

The plaintiff offered in evidence the Public Laws of New Hampshire chapter 217, relating to the enforcement of liens on personal property. Under these statutes fourteen days' notice is required before the sale of the property by posting and by publication and notice to the owner. It is admitted by the defendants that no notice was given the plaintiff under the statutes of New Hampshire. At the close of the evidence the plaintiff made certain requests for rulings. The second, third, fourth, sixth, eighth and the last sentences of the fifth and seventh were refused subject to the plaintiff's exception. As the contract between the plaintiff, a Massachusetts corporation, and the company through its agent in Worcester, in this commonwealth, was made in Worcester, it was a Massachusetts contract and the judge so ruled. We are of opinion that the law of New Hampshire is not applicable to this contract. The rule is that the nature, validity, and interpretation of a contract are to be governed by the law of the place where it is made. ‘The law of the place where the contract is made is, without any express assent or agreement of the parties, incorporated into and forms a part of the contract. Their contract is presumed to be made with reference to the law of the place where it is entered into, unless it appears that it was entered into with reference to the law of some other state or country.’ Baxter National Bank v. Talbot, 154 Mass. 213, 216, 28 N. E. 163, 164,13 L. R. A. 52;Atwood v. Walker, 179 Mass. 514, 61 N. E. 58;Clark v. State Street Trust Co., 270 Mass. 140, and cases cited at page 150, 169 N. E. 897. The rule above stated prevails in other jurisdictions. Central Nat. Bank of Washington v. Hume, 128 U. S. 195, 206, 207, 9 S. Ct. 41, 32 L. Ed. 370;Gross v. Jordan, 83 Me. 380, 22 A. 250;Barrett v. Kelley, 66 Vt. 515, 29 A. 809,44 Am. St. Rep. 862. The trial judge at the request of the plaintiff ruled that the conditional sale agreement was a Massachusetts contract. This ruling was plainly right; but whether right or wrong, the plaintiff is bound by it and cannot complain because it was a ruling made at its request. The evidence warranted the inference that the delivery of the shovel in Manchester, New Hampshire, was for the convenience of the plaintiff in doing work in that neighborhood lasting, at most, only for a season and that the shovel was intended to be removed to Massachusetts or to any other place where the plaintiff obtained another contract. It could have been found by the trial judge that the parties had no intention that the performance of the contract of conditional sale was to be in New Hampshire, or that the law of any other state was to govern their rights. In these circumstances, the fact that the delivery happened to be in New Hampshire is immaterial. The case at bar in its facts differs essentially from many cases where a contrary result was reached. For example, it was held in Knowles Loom Works v. Vacher, 57 N. J. Law, 490, 31 A. 306,33 L. R. A. 305, affirmed in 59 N. J. Law, 586, 39 A. 1114, that where a loom had been sold in New York under a contract of conditional sale, delivery to be made in New Jersey, a statute of the latter state requiring such contracts to be recorded was applicable. That case, and other cases holding that an article was sold to be annexed to or incorporated in a certain place, there to be used permanently, stand upon a different footing from a case where there is a sale of personal property which, it could be found, was intended to be used in different states. It was said in Clark v. State Street Trust Co., 270 Mass. 140, at page 150, 169 N. E. 897, 902: ‘The nature of a contract obligation and its interpretation commonly are governed by the law of the place where the contract is made. * * * A limitation upon this general rule appears to arise when it is manifest that the contract was made with a purpose by the parties that it is to be performed in a particular place and is to be construed as to its validity and meaning as well as to its mode of performance by the law of that...