Spooner v. Cummings

• Decision Date: 11 March 1890
• Citation: 151 Mass. 313,23 N.E. 839
• Parties: SPOONER v. CUMMINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 313

23 N.E. 839

SPOONER v. CUMMINGS.

Supreme Judicial Court of Massachusetts, Middlesex.

March 11, 1890

Exceptions from superior court, Middlesex county; P. EMORY ALDRICH, Judge.

Replevin of a horse. Answer, general denial. Plaintiff proved ownership prior to May 26, 1888, and identified the horse as the one described as "one black horse called 'Jenks horse,' " delivered to D.F. Pope, but never paid for, under the following contract: "Hudson, May 26 1888. Received of L.R. Spooner, this day, one gray mare called 'Horton mare;' one gray horse, called 'Jenks horse;' one black horse, called 'Jenks horse;' one white-nose horse, called 'Boston horse;' for which I promise to pay said L.R. Spooner or order five hundred seventy-five dollars, one month from date at City National Bank, with interest at 7 per cent. Said horses and mare to be and remain the entire and absolute property of said Spooner until paid in full by me. And I hereby agree to keep said horses and mare in good order and condition, as the same now are. And should said horses and mare die before said sum is fully paid, I hereby agree to pay all sums due thereon. And should said horses or mare be returned to or taken back by said Spooner, I agree that all payments made thereon may be retained by said Spooner for the use of said horses and mare. DANIEL F. POPE." Plaintiff kept a livery and sale stable in Worcester, and had sold horses to Pope largely within the past three or four years. Plaintiff asked the court to rule that under the answer defendant could only show that the contract relied on was not made, or that the horse had been paid for; but the court ruled that defendant might show, also, that plaintiff gave Pope authority, express or implied, by the course of dealing, to sell the horse before he paid for it. Against his objection, plaintiff was required to answer, in cross-examination, the following question: "What was the course of dealing between you and Pope in the year 1888, about May 26th, and extending back a little and forward a little?" and the following evidence from plaintiff, in cross-examination, was admitted: "I sold Pope fifty horses, perhaps, in the year 1888. I supposed that Pope wouldn't use fifty horses in his livery stable unless he sold some. He usually kept from twenty-five to thirty. Naturally he would want to sell some that he had, or some other ones, to make room. I didn't expect he would sell any of mine until he paid for them. I would have made objections to his selling one of my horses, even if he sent me the money the next day." Pope was permitted to testify that "the course of dealing between plaintiff and me was I'd buy horses and give these contracts, and I'd send him money, and he'd apply it where he saw fit, on any of these contracts. He used to urge me to sell, that he had a barn full. Sometimes I'd tell him I wanted a horse for a particular person. I told him this time I wanted a horse for a teamster." J.A. Trull was permitted to testify that about the middle of June, 1888, Spooner told him to tell Pope that he had a carload coming, and to sell as many as he could. Defendant bought this horse of Pope, June 2, 1888, and paid cash at the time.

COUNSEL

C.W. Wood and F.A. Gaskill, for plaintiff.

J.W. McDonald, for defendant.

OPINION

KNOWLTON J.

Under the answer of the defendant, any evidence was competent which tended to contradict the contention of the plaintiff that the title to the horse and the right of possession were in him. Verry v. Small, 16 Gray, 122; Whitcher v Shattuck, 3 Allen, 319. The defendant...