Nat'l Cash Register Co. v. Underwood, 7641.
| Decision Date | 03 July 1936 |
| Docket Number | No. 7641.,7641. |
| Citation | 185 A. 909 |
| Parties | NATIONAL CASH REGISTER CO. v. UNDERWOOD. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.
Action by the National Cash Register Company against J. H. Underwood. Decision for plaintiff, and defendant brings exceptions.
Judgment on the decision on condition of remittitur.
Waldman & Waldman, of Providence, for plaintiff.
James O. Watts, of Wakefield, for defendant.
This is an action of trover. The case is before us upon exceptions taken by the defendant at a trial which took place before a justice of the superior court sitting without a jury and which resulted in a decision for the plaintiff in the sum of $250. The defendant contends that certain testimony was erroneously admitted against his objection; that the decision on the merits is not supported by the evidence, and that the damages are excessive.
In January, 1934, the plaintiff sold a National cash register to Thomas L. Moore and Thomas J. Healy on a conditional sale agreement for $262.50. It took back in trade a Remington cash register at an agreed valuation of $83 and received $12.50 in cash, leaving an unpaid balance of $167. The plaintiff's register was delivered at the Wakefield Diner, in Wakefield, R. I, which was then operated by Moore and Healy. At the time of this transaction the defendant held a chattel mortgage from Moore alone covering all the equipment in the diner, including the Remington register which was given in trade by Moore and Healy to the plaintiff. No payment was made to the plaintiff in February under the conditional sale and a condition of the agreement was thus broken. The breach has continued and the plaintiff has ever since been entitled to the possession of the register. On March 15, 1934, Moore was adjudged a voluntary bankrupt. The plaintiff was not listed as a creditor, but the National register was inventoried and appraised among Moore's assets at the Wakefield Diner. On May 5, 1934, the defendant purchased these assets from the trustee in bankruptcy subject to his mortgage, and on the same day took possession of the premises. Two weeks later the defendant leased the premises to one Whiting, at which time the plaintiff's register was stored in the cellar and another register that the defendant had on hand was brought to the diner for use. The defendant, though informed by the plaintiff that it owned the National register, refused, upon demand by the plaintiff, to surrender that register unless the plaintiff returned to him the Remington register that was originally in the diner and that was included in Moore's chattel mortgage to him.
A writ of replevin issued in behalf of the plaintiff could not be served because the register was stored away in the cellar of the diner and was not found by the officer in charge of the writ. The plaintiff then demanded of the defendant the payment of its claim or the return of the register. The defendant refused to pay the bill and would not surrender the register unless the Remington register was returned to him, whereupon the plaintiff brought this action of trover.
Any claim that the defendant may have, if any, against this plaintiff with reference to the Remington register as a result of the conduct of Moore and Healy is not before us in this case. In any event, it furnished him no legal justification for concealing and refusing to deliver to the plaintiff the register that it had sold to Moore and Healy under the conditional sale agreement. The contention that the plaintiff is estopped to assert its right of possession to the National register, because it failed to assert its claim with the trustee in bankruptcy after it had acquired notice, in an indirect way, of Moore's bankruptcy prior to the sale of the equipment in the diner by the trustee to the defendant, is without merit. The trustee in bankruptcy acquired no greater interest in the register than Moore had, and that is all he could convey to a purchaser from him. The defendant was in no way prejudiced by the plaintiff's inaction. We have examined the transcript of the evidence and find no reason to disturb the decision of the trial justice on the issue of liability.
Clifford A. Sweet, a salesman for the...
To continue reading
Request your trial
-
Jeffrey v. American Screw Co.
...of the property at the time of its conversion, a matter susceptible of being proved by evidence of market value. National Cash Register Co. v. Underwood, 56 R.I. 379, 185 A. 909. It is well settled that market price has probative force on such issue and therefore usually is admissible, but ......
- Maher v. Copicannon
-
Moss v. Rocky Point Park, Inc., 9399
...circumstances it was not to be considered merely as an unaccepted offer. The defendant also relies strongly on National Cash Register Co. v. Underwood, 56 R.I. 379, 185 A. 909, but the facts therein are distinguishable. In that case the court held that a price list prepared and intended by ......