Smith v. Hale

• Citation: 158 Mass. 178,33 N.E. 493
• Parties: SMITH v. HALE.
• Decision Date: 01 March 1893
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 178

33 N.E. 493

SMITH v. HALE.

Supreme Judicial Court of Massachusetts, Franklin.

March 1, 1893

Plaintiff exchanged a sidespring buggy wagon for defendant's heifer, and both heifer and buggy were delivered. The buggy and springs were warranted to carry defendant, her husband, and a hundred of meal. Three days after the exchange one of the springs broke, and the same day plaintiff agreed to have the buggy repaired. Several weeks later, the repairs not having been made, defendant claimed the right to rescind the contract for breach of warranty and, against plaintiff's orders, left the buggy with a broken spring on the latter's premises, and demanded the heifer, which was refused, and the defendant forbidden to take it. On the following day defendant, in the absence of plaintiff, entered the latter's premises, and took the heifer from the barn, doing no damage except such as resulted from entry against plaintiff's will. The alleged breaking and entering of plaintiff's close, and the alleged wrongful taking of the heifer in the replevin suit, being contemporaneous, and the entry on plaintiff's close being for the purpose of taking the heifer, defendant objected that plaintiff could not maintain both actions, claiming that the breaking and entering the close and the taking of the heifer were but parts of one and the same transaction. The court overruled this objection, and proceeded to the trial on both cases. Plaintiff's first and third instructions refused by the trial court were as follows: (1) "That if there was in the case no oral testimony from the defendant of any reliance by her upon the alleged warranty, they should find for the plaintiff." (3) Also "that where a purchaser inquires for himself, and acts upon his own opinion, he cannot say that he has been misled by a false statement of another; and if he inspects and examines the article for himself, and selects it after exercising his own judgment upon its character and quality, the vendor only warrants that the article, so far as he knows, is what it appeared to be, and what he believed it to be, at the time he sold it."

COUNSEL

Frederick L. Greene, for plaintiff.

S.T Field, for defendant.

OPINION

ALLEN J.

It is settled in this commonwealth that a breach of warranty upon a sale of personal property authorizes the purchaser to rescind the contract and return the article, although there was no express agreement to that effect, and no fraud. Bryant v Isburgh, 13 Gray, 607. It has been found in this case that there was such breach of warranty and right of rescission. The bill of exceptions states that there was evidence tending to show that the defendant, claiming a right to rescind, left the buggy upon the plaintiff's premises and demanded the heifer, and that the plaintiff refused to give up the heifer, and forbade the defendant to take it. Though it is not expressly stated in the bill of exceptions that these facts appeared to be true, yet the plaintiff's brief relies on the plaintiff's prohibition as proved, and assumes the truth of the above facts, and therefore we assume them to have been proved. The most important question in the case is whether, on these facts, the defendant had a right to enter upon the plaintiff's premises, and reclaim her heifer. We are of opinion that she had. It is true that it has been held that, where nothing appears except that the goods of one person are upon the land of another, the owner of the goods has no implied license from the owner of the land to enter and take them away. Anthony v. Haneys, 8 Bing. 186; 2 Greenl.Ev. § 627. And this rule has been applied to the case of a mortgage of personal property before foreclosure if the goods have been left in the mortgagor's possession. McLeod v. Jones, 105 Mass. 403. But after foreclosure the mortgagee has an implied irrevocable license to enter and carry away his goods. McNeal v. Emerson, 15 Gray, 384. Where a piano was hired for an indefinite time, with no agreement giving to the owner a right to enter the hirer's premises and reclaim the piano without prior demand or notice, it was held that he had no implied license to do so. Smith v. Pierce, 110...