Silver v. Roberts Garage, Inc.

• Decision Date: 03 March 1922
• Citation: 134 N.E. 610,240 Mass. 571
• Parties: SILVER v. ROBERTS GARAGE, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 571

134 N.E. 610

SILVER

v.ROBERTS GARAGE, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1922.

Exceptions from Superior Court, Suffolk County; George A. Sanderson, Judge.

Action of replevin by Louis Silver against the Roberts Garage, Inc., to recover an automobile. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

Defendant's evidence tended to show that Frank L. Roberts purchased the car from M. F. Chase, Inc., on a conditional contract of sale, and subsequently returned it and asked for the return of the contract and notes, and was finally told that they had been lost, but they had in fact been transferred to one Russell, to whom defendant subsequently made payments from time to time, and to whom he gave his personal note for a balance due, taking an assignment of the lease and notes to the defendant garage, of which Roberts was the principal stockholder. Plaintiff claimed under one who purchased the car from M. F. Chase, Inc., after Roberts returned it. Roberts was asked on cross-examination, over defendant's objection and exception, whether he made any demand or demanded payment of the notes before he seized the car, and whether he notified anybody that he had taken the car and would hold it until the note was paid, to all of which questions he answered in the negative. The court submitted the question whether defendant was estopped to assert its title against plaintiff, and defendant excepted to the submission of such issue.Frank Freundlich, of Boston, for plaintiff.

S. A. Dearborn, of Boston, for defendant.

BRALEY, J.

The action is replevin to obtain possession of an Owen Magnetic automobile. The admission of evidence to which the defendant excepted having been elicited in cross-examination, was within the discretion of the court, and the only remaining question is, whether there was evidence which would warrant a finding by the jury that the defendant was estopped from maintaining its alleged title to the automobile. It seems to have been unquestioned that on January 15, 1917, one Roberts bought of F. M. Chase, Inc., the car upon a conditional contract of sale or lease, the title to remain in the seller until full payment of the balance of the price according to the tenor of certain promissory notes given by the buyer. In the following March, Roberts returned the car. He testified ‘that he had paid some of the notes, and then, that he had paid none of them,’ and that he demanded a ‘return of the contract and notes,’ and finally was told that ‘they were lost.’ The jury, especially in the light of the evidence of one Russell, who on or about January 26, 1917, lent money to the seller, taking an assignment of the lease and notes as collateral security, and of Roberts, who said that Russell came to see him to verify his ‘signature on the lease or on the notes,’ were not bound to believe his version of what took place when he returned the car. Furthermore they could rely on Russell's testimony, that before discounting the notes he called on Roberts ‘to verify his signature on the lease, and notes, and told him he was going to discount them,’ and could find on all the evidence, that at this time Roberts knew that his friend Edward R. Sherburne, under whom the plaintiff derived title, intended to buy the car from Chase in whose possession as the ostensible owner it had remained.

[2][3] If Roberts' first statements were true, the conditional contract could be found to have been mutually abrogated. But without making any attempt to assert his rights on the ground that the contract had been terminated before the assignment to Russell, he paid Russell the full amount and took from him an assignment of the...