Schmidt v. Ackert

• Citation: 231 Mass. 330
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 27 November 1918
• Parties: ALICE M. SCHMIDT v. ANDREW P. ACKERT & trustees.

231 Mass. 330

ALICE M. SCHMIDT v. ANDREW P. ACKERT & trustees.

Supreme Judicial Court of Massachusetts, Hampden.

November 27, 1918

October 14, 1918.

Present: RUGG, C J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Sale, Conditional. Election. Contract, In writing, Implied in law.

Where chattels were sold under a contract of conditional sale calling for a total payment of $4,000, the title to remain in the seller until payment had been made in full, and where, after instalments had been paid amounting to $2,288.63, the buyer made default in the payment of the remaining notes and the seller took possession by an action of replevin of what was left of the property in the hands of the buyer, this was an election by the seller to treat the transaction as no sale, and he cannot afterwards maintain an action of contract for the balance of the purchase money.

Where the buyer under a contract in writing for the conditional sale of chattels after a partial payment of instalments of the purchase money makes default and the seller takes possession of the chattels under the terms of the contract, the seller cannot maintain an action against the buyer to recover the value of the buyer's use of the chattels while in his possession in excess of the payments made by him, the rights of the parties being defined by their express contract in writing and there being no basis for such an implied contract to pay for the use of the chattels.

CONTRACT to recover a balance alleged to be due on a sale to the defendant, by the plaintiff's husband and through a third person the plaintiff's assignor of certain livery stable property and equipment for $4,000, the defendant being credited with payments amounting to $2,288.63, and to recover also compensation for the use of the plaintiff's property by the defendant. Writ dated November 25, 1914.

The declaration contained two counts, the first for the amount alleged to be due on certain unpaid promissory notes amounting to $1,711.37, and the second count to recover for the value of the use of the plaintiff's property by the defendant while in the defendant's possession in excess of all payments made by the defendant, the excess of such value being alleged to be $1,211.37.

The defendant demurred to the declaration alleging as causes for demurrer the following:

"Count 1. "1. Because the plaintiff, having elected to obtain the property itself through replevin on account of default in the terms of the agreement, cannot through a contract action obtain the amount due by the terms of the agreement and represented by promissory notes from the date of the said agreement to the time of the replevin action.

"Count 2. "1. Because the plaintiff, having elected to obtain the property itself through replevin on account of default in the terms of the agreement, cannot, through a contract action obtain a fair and reasonable value for the use of said property over and above all payments made under said agreement from the date of said agreement to the time of the replevin action."

The case was argued on the demurrer before Hamilton, J., who made an order overruling the demurrer. The defendant appealed.

The defendant filed an answer containing a general denial and an allegation of payment, and the case was tried before Jenney, J. The facts which appeared in evidence are stated in the opinion. At the close of the evidence the plaintiff asked the judge to make the following rulings:

"1. Under the pleadings and evidence, the plaintiff is entitled to judgment under the first count of the amended declaration for the difference between the rental value of the property in question accrued before the retaking of property on replevin and the agreed amount of the defendant's payments namely, $2,288.63.

"2. Under the pleadings and evidence, the...