Russell v. Martin

• Decision Date: 01 March 1919
• Citation: 232 Mass. 379
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LEROY P. RUSSELL v. SARKIS MARTIN & trustee.

232 Mass. 379

LEROY P. RUSSELL v. SARKIS MARTIN & trustee.

Supreme Judicial Court of Massachusetts, Essex.

March 1, 1919

January 22, 1919.

Present: RUGG, C.

J., LORING, BRALEY CROSBY, & CARROLL, JJ.

Sale, Conditional. Election.

Where under a contract of conditional sale of a chattel the price, which is a round sum, is payable in instalments, the first in cash and the others represented by seven promissory notes, and the title is not to pass until the last note is paid, if the buyer defaults on the cash payment by failing to make good a check which he has given for it and also fails to pay the first four notes as they fall due, and thereupon the seller brings an action of replevin for the chattel, he has elected to disaffirm the sale and he then or thereafter cannot maintain an action of contract on the check and the overdue notes.

CONTRACT on a check of the defendant dated March 23, 1917, for $50.50 and on four promissory notes, each for $50, payable respectively on April 8, May 8, June 8 and July 8, 1917. Writ in the First District Court of Essex dated July 11, 1917.

On appeal to the Superior Court the case was tried before Dana, J. The evidence is described in the opinion. The check and notes sued upon were given under a contract of conditional sale of a motor truck, which was as follows:

"Know all men by these presents "That I, Sarkis Martin, of Salem County of and State of Massachusetts, have received and hired of Leroy P. Russell the following described automobile, to wit; 1917 Metz Truck, No. 39183, as is.

"For the use of the above mentioned automobile, and as rent for the same I have this day paid to the said Leroy P. Russell the sum of Two Hundred Dollars, and I do further promise to pay to him or his legal representatives, the sum of $425.00 Dollars, with interest as stated in my eight promissory notes of even date, payable as follows: $50.00 Mar. 8, 1917; $50.00 Apr. 8, 1917; $50.00 May 8, 1917; $50.00 June 8, 1917; $50.00 July 8, 1917; $50.00 Aug. 8, 1917; $50.00 Sept. 8, 1917; $75. Oct. 8, 1917; which I have executed and delivered to the said Leroy P. Russell as an evidence of the foregoing promise and as Collateral Security therefor, it being understood and agreed that when the full amount thereof or of any extension or renewal of any or all of said notes have been paid, said rent shall cease and the said automobile and the accessories thereon shall become my absolute property, but until the full payment thereof as aforesaid, said automobile and the accessories thereon shall remain and be the property of the said Leroy P. Russell.

"Provided, however, that I or my legal representatives may enjoy the use and possession of the said automobile until the breach of any of the conditions herein set forth.

"And in the event of my failure to pay said rent as aforesaid, the said Leroy P. Russell or his legal representatives may, without being deemed guilty of any trespass or tort, and without thereby rendering himself, or themselves, liable to refund any sums received by him, or them, as rent as aforesaid, enter any house or place where the said automobile or the accessories may be, and take immediate possession of and remove said automobile and the accessories thereon therefrom.

"And I further agree that so long as said rent shall be payable as aforesaid, I shall not waste or destroy the said goods and chattels, nor suffer them or any part thereof to be attached on mesne process, nor sell, mortgage or re-let said automobile without notice to Leroy P. Russell of my intention so to do, or in the event of my failure to pay said rent, or upon breach of any other of my covenants and agreements hereinbefore set forth, I will, on demand, return the said automobile to the said Leroy P. Russell.

"Said car is leased as is, and no reference, representation, contract, agreement, promise, undertaking or understanding whatsoever not contained herein shall be binding upon the Lessor, or in any wise effect [sic] the validity of this contract or from any part thereof, but all statements made have been merged and set forth herein.

"I further agree that there are no collateral agreements nor misunderstandings whatsoever modifying or affecting the terms of the within lease, or my liabilities thereunder, and that there are no set-offs, counter-claims nor defenses thereto.

"Witness my hand and seal this Eighth day of February, 1917. Sarkis Martin, 134 1/2 Boston St., Salem, Mass."

The plaintiff brought an action of replevin for the motor truck, as stated in the opinion. The date of the writ of replevin was July 11 1917, the same as the date of the writ in this action. If material to the determination of this case, it was agreed, that the...