Lawrenson v. Worcester Lunch Car & Carriage Mfg. Co.
| Decision Date | 28 June 1938 |
| Citation | 300 Mass. 543,15 N.E.2d 978 |
| Parties | ERNEST G. LAWRENSON v. WORCESTER LUNCH CAR AND CARRIAGE MANUFACTURING COMPANY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 1, 1938.
Present: FIELD LUMMUS, DOLAN, & COX, JJ.
Sale, Conditional Warranty. Assignment. Deceit. Voucher to Defend. Res Judicata.
A conditional vendor of a lunch car who warranted to an assignee of the vendee's interest at the time of the assignment and later in a bill of sale that the car was and would remain personal property movable by the assignee "at any time he wished," was not liable to the assignee for alleged breach of such warranty where the car had become part of the real estate on which it was located because of acts of the vendee without knowledge of the vendor before the assignment and the assignee later lost the car through foreclosure of a mortgage on the real estate given for his benefit and with his approval.
An action for alleged deceit in misrepresenting the title to a lunch car inducing the plaintiff to buy it from the defendant could not be maintained where, although it appeared that the defendant vendor under a conditional bill of sale to a predecessor in title of the plaintiff, on payment of the full purchase price had made a bill of sale to the plaintiff, the car at that time because of acts of the plaintiff and his predecessor in title for years had been affixed to the realty and the title to the land and the car had been acquired by the plaintiff's brother for the plaintiff's benefit.
A seller vouched in to defend proceedings calling in question the purchaser's title was not liable to the purchaser for failure to defend where the defect in the title, if any existed, resulted from the purchaser's acts.
In an action by a buyer of a lunch car against the seller for breach of warranty of title, the issue of the defendant's liability was not as a matter of law concluded in favor of the plaintiff by an adjudication in a previous suit to the effect that two years after the sale the car was part of the realty on which it was located and that the title of a purchaser at a sale in foreclosure of a mortgage of the realty was paramount to the buyer's title.
CONTRACT OR TORT. Writ in the Superior Court dated October 22, 1934. The case was tried before Brogna, J., and in this court was submitted on briefs.
The allegations of the third count of the declaration were in substance "that the defendant . . . by fraudulently representing to the plaintiff that it was the owner of" the lunch car in question "induced the plaintiff to buy the same of the defendant"; that the "said lunch car and equipment were not the property of the defendant . . . but, in fact, was the property of the Lowell Trust Company . . . that the said Lowell Trust Company later was taken over by the commissioner of banks . . . who has since taken the same from the plaintiff."
The buying by "the plaintiff" "of the defendant" was by the bill of sale dated September 9, 1931, mentioned in the opinion. At that time, the title to the property was in the plaintiff's brother, who was acting for him and had taken title on June 12, 1930. The Lowell Trust Company was a mortgagee from the brother under a mortgage deed of that date of the land and the "buildings thereon." The lunch car had been affixed to the realty at least since 1928.
M. J. Cohen, for the plaintiff.
C. A. Warren & N.
R. Voorhis, for the defendant.
This is an action of contract or tort. The first count of the declaration alleges the breach of covenants contained in a bill of sale dated September 9, 1931, of a lunch car purchased from the defendant. The second count alleges the purchase of the lunch car; that the defendant executed the bill of sale described in the first count; that the commissioner of banks in possession of the Lowell Trust Company, claiming title to the car, brought a bill in equity against the plaintiff in the case at bar which resulted adversely to him; that the plaintiff seasonably tendered to the defendant the defence of this bill in equity but that it refused to defend; that at the time the car was sold, it was real estate and not personal property; that the defendant had no title to the lunch car and had no right to sell it as personal property. The third count is for alleged deceit. The case was heard by a jury and the judge directed a verdict for the defendant on the third count. The jury returned a verdict for the plaintiff on the other counts, which, on leave reserved, was set aside, a verdict for the defendant being entered. The case comes to this court on a report by the trial judge.
The evidence tended to prove, and the jury would have been warranted in finding, that in June, 1927, one Cronin wished to secure a portable lunch car and that on August 20, 1927, the defendant delivered to him such a car at its place of business in Worcester, in accordance with the terms of a "conditional sale agreement," signed by Cronin, one term of which was that title to the car "is now and is to be" in the defendant until the full amount of the purchase price should be paid. At that time, Cronin owned a lot of land in Lowell which was subject to a mortgage of $3,500 to the Lowell Trust Company, hereinafter referred to as the trust company. Before Cronin purchased the car, he saw one Harrigan, the president of the trust company, and told him that he proposed to demolish the old building on his land and to set up "a portable lunch car [to be acquired] from the defendant under a conditional sale agreement whereby title thereto would remain in the seller until the purchase price had been fully paid." The president, for the trust company as mortgagee, consented to the demolition of the old building upon payment of $1,000 in reduction of the mortgage principal, and this payment was made and the old building demolished. The lunch car was designed and constructed by the defendant to rest on four piers. Cronin constructed these piers and dug a cellar where the car was to be located and also one beneath a cook house that he built in the rear of the car. He put in a cement foundation and, after the car had been set, he filled in the front and both ends with brick. The car was wired for electricity, and water and drain pipes were connected at outlets provided for them underneath the car. At no time did the defendant have knowledge or notice of what was done or being done on the land or of how the car was placed, except that it was designed to and did rest on four piers; nor did the defendant have any knowledge of violation of the provisions of the conditional sale agreement, except those relating to the instalment payments required by it.
Cronin operated the car until September, 1928, when he arranged with the plaintiff to transfer to him his interest under the conditional sale agreement, and the business conducted in the car, and also to rent to him the land upon which the car stood. Thereupon Cronin and the plaintiff's brother went to Worcester, where they saw the defendant's treasurer and requested that the defendant consent to the assignment of Cronin's interest under the conditional sale agreement. The treasurer indicated the defendant's willingness to assent, provided all overdue payments were made and that the plaintiff would guarantee all payments falling due thereunder and compliance with all obligations of the conditional vendee. As a result, the plaintiff's brother paid the sums that were overdue and on September 10, 1928, the plaintiff executed and delivered to the defendant an instrument under seal that recited the "lease" to Cronin, the transfer of all of Cronin's rights under the "lease" to the plaintiff and "in consideration of said transfer to me . . . [the plaintiff does] hereby GUARANTEE to . . . [the defendant] all payments falling due under said lease, and . . . [does] FURTHER AGREE to . . . [the defendant] full compliance with all obligations of the lessee under said lease." The plaintiff's brother testified that when he was in Worcester, the defendant's treasurer agreed that upon completion of the payments the defendant would give the plaintiff a bill of sale of the car; and that the treasurer told him that the car "was then and would always remain personal property and could be moved by the plaintiff at any time he wished." The plaintiff completed the payments on the car and received a bill of sale dated September 9, 1931. The plaintiff's brother acted for him in the purchase of the car and thereafter. From September, 1928, until June, 1933, the car was used and the business was carried on continuously by the plaintiff or in his name. His brother conducted all of the plaintiff's correspondence, made all remittances to the defendant, but always in the plaintiff's name, with nothing to indicate that the plaintiff was not acting himself. His brother went to the lunch car regularly and assisted him in every way he could, and the plaintiff relied upon his judgment. The plaintiff became ill in the fall of 1929, and has since been totally incapacitated. After the plaintiff became ill his brother had charge of his business, kept the books of account, had charge of the money, defended the equity suit and prosecuted the action at bar in behalf of the plaintiff.
In May, 1930, the trust company instituted proceedings to foreclose the Cronin mortgage. Harrigan, its president, sent for Cronin and the plaintiff's brother, and an agreement was reached whereby the latter should bid the property in at the foreclosure sale and should execute his promissory note for $4,000, this being the amount then due on the mortgage, to be secured by a new first mortgage on the land, "with the buildings thereon." This arrangement was carried out [*] and the plaintiff's brother...
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