Parry v. Libbey

• Decision Date: 21 May 1896
• Citation: 44 N.E. 124,166 Mass. 112
• Parties: PARRY et al. v. LIBBEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 112

44 N.E. 124

PARRY et al. v. LIBBEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1896

COUNSEL

Sherman

L. Whipple, for plaintiffs.

Geo Fred Williams and G.W. Anderson, for defendant.

OPINION

HOLMES J.

This is an action for the conversion of certain bricks, and comes before us on the defendant's exceptions. The alleged conversion was a seizure of the bricks under a mortgage purporting to cover bricks manufactured subsequently to its date, and the plaintiffs claimed title by delivery to them as bona fide purchasers for value under a bill of sale before the seizure by the defendant. The bricks in question were made after the mortgage. The main questions raised by the exceptions are whether the judge ought to have ruled that there was no delivery of the bricks to the plaintiffs, and also that no consideration was given by them for the bill of sale.

The bill of sale was an instrument under seal, and purported to convey to the plaintiffs "a certain lot of bricks, being bricks now left in a certain kiln situated in the southerly end of brickshed at South Clinton, Massachusetts, containing about two hundred thousand hard bricks, also about one hundred thousand light hard bricks; being piled partly in northern end of said shed, and partly outside of shed." These words, on their face, purport to convey all the bricks in the two distinct piles mentioned, and, there being no denial that the piles were distinct, parol evidence was not admissible to cut down their effect. Harper v Ross, 10 Allen, 332. Testimony was admitted that it was agreed orally at the time of the sale that the vendor should have the right to deliver, out of the bricks, a certain amount,--it seems, about 10,000 or 15,000 bricks,--that he wished to deliver to others. But, apart from the objection just stated, the judge who tried the case was warranted in finding that this amounted to no more than a license to the vendor to take a certain amount from the purchaser's piles in case he should wish to do so thereafter.

The goods sold thus being specified, the parties went to the brickyard, and Mr. Parry says, in terms, that he took possession of them. He counted the bricks, and made arrangements with one of the vendors, personally, to ship the bricks as he should send word. Portions of the bricks were shipped from time to time, in pursuance of the arrangement. The land where the brickstood seems to have belonged to a third person, but nothing appears in the evidence which diminishes the effect of the facts stated. On these facts the judge was warranted in finding a delivery sufficient to pass the title to all the bricks, as against third persons. Hobbs v. Carr, 127 Mass. 532; Ropes v. Lane, 9 Allen, 502, 510; Id., 11 Allen 591; Hardy v. Potter, 10 Gray, 89; Riddle v. Varnum, 20 Pick. 280.

A question of evidence may be disposed of before passing from this subject. The defendant offered to prove that the sellers of the bricks, after the delivery to the plaintiffs, spoke of the...