Salomon v. Hathaway

• Decision Date: 02 April 1879
• Citation: 126 Mass. 482
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles Salomon v. Asa S. Hathaway & others

126 Mass. 482

Charles Salomon v. Asa S. Hathaway & others

Supreme Court of Massachusetts

April 2, 1879

Suffolk. Replevin of a quantity of cigars. Answer, a general denial. At the trial in the Superior Court, before Putnam J., without a jury, the following facts appeared:

The plaintiff did business in New York, and the defendants were members of a firm doing business in Boston. The cigars in question were sold to the defendant Hathaway by one Frasier an agent of the plaintiff; the sale was on condition that the cigars should be sent to the defendants for examination, and if they proved satisfactory the defendants should give a note on four months' time in settlement of the bill. The goods were forwarded with a bill of them amounting to $ 450; and arrived in Boston on August 24 or 25, 1877. Frasier called at the defendants' store on Friday, August 25, and requested the note of one of the firm, who replied that the other partner, Jacobson, was out of the city, but would return on Saturday, when he would examine the cigars, and, if they were satisfactory, would give the note.

Frasier testified that, on Sunday, August 27, Mitchell called on him and told him that Jacobson had been ordering goods largely in New York, which they were unable to pay for; that a draft from New York for $ 800 had been returned on that day; that a note to the plaintiff, given in payment of cigars previously purchased, would fall due on the following Tuesday, and would not be paid; that there was some trouble between the partners, and that he advised the witness to watch his cigars; that the witness telegraphed to the plaintiff to come to Boston, and went himself to the defendants' store, on the next day, Monday, and watched the cigars all day; that they remained in the original cases in which they arrived excepting that one sample box had been taken out of each case and lay on top of the case; that on Monday Jacobson also told him that there was trouble between the partners; and that on Tuesday the plaintiff arrived from New York and replevied the cigars. Jacobson testified that on Saturday, when he arrived home, his attention was called to the cigars; that he opened the cases, took out samples and examined them; and that he told Mitchell they were satisfactory, and to settle for them. There was no evidence that any demand was made for a note after the conversation with Mitchell on Sunday.

Upon this evidence, the defendants asked the judge to rule that if Mitchell and Frasier had the conversation on Sunday testified to, and Mitchell then suggested that Frasier...