Vinal v. Spofford

Decision Date25 March 1885
Citation139 Mass. 126,29 N.E. 288
PartiesHenry J. Vinal v. Samuel W. Spofford[1]
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Argued November 25, 1884 [Syllabus Material] [Syllabus Material]

The property in question belonged originally to plaintiff's father, and was kept at defendant's livery stable. On January 4, 1883, plaintiff's father, being embarrassed executed a bill of sale to his stock of groceries, and the horse, vehicles, and harness, to plaintiff, for which plaintiff paid a valuable consideration. At this time there was due defendant for the keep of the horse between $160 and $190. Plaintiff continued the business, and to keep his horse at defendant's stable, but defendant had no notice of the sale. After this, defendant demanded payment of his bill from plaintiff's father, and, on its being refused, took possession of the horse, vehicles, etc., and put them in his stable.

Suffolk.

Replevin of one horse, one grocery wagon, one open buggy, one express harness, and one buggy harness. Writ returnable to the Municipal Court of the city of Boston. That court entered judgment for the plaintiff for all the articles replevied except the horse, with damages and costs; and also entered judgment for the defendant for a return of the horse, and for damages and costs. The plaintiff appealed to the Superior Court from the latter judgment. Trial in that court, before Brigham, C. J., who allowed a bill of exceptions, in substance as follows:

The defendant contended that he had a right, under the plaintiff's appeal, to try the question of the title to the wagon and the harnesses; but the judge ruled that he had no such right, and excluded evidence offered in regard to such title.

As to the horse, there was evidence tending to prove the following facts: Howard Vinal, the father of the plaintiff, during the two years prior to January 4, 1883, had owned a stock of groceries, and also the horse described in the plaintiff's declaration, which he had used in connection with his business of a grocer, at a shop in Boston, and during seven months of this period had hired the keeping of said horse at the livery stable of the defendant. On January 4, 1883, Howard Vinal, being embarrassed in his business, executed and delivered a bill of sale of all the stock, furniture, and fixtures owned by him in said shop, together with said horse, to the plaintiff, and on the same day delivered the horse to the plaintiff, in consideration of the plaintiff's promissory note, payable on demand, for a certain sum, which was received by Howard Vinal, on payment of said note, and applied by him to carry into effect a composition with most of his creditors.

At this time of this composition, Howard Vinal requested the defendant to become a party thereto, but the defendant, whose claim against Howard Vinal for keeping the horse was from $ 160 to $ 190, refused so to do unless the full amount of his claim was paid; and he did not become a party to said composition during the keeping of the horse at the defendant's livery stable, before and after the transaction of sale between Howard Vinal and the plaintiff. After January 4, 1883, the shop was conducted with the same sign upon it as before; the horse was used in the business of said shop as before, and Howard Vinal conducted, for a salary of $ 12 per week, the business of the shop, with the same clerks as before, while the plaintiff carried on the business of his shoe shop on another street.

The daily custom in the matter of the use and keeping of said horse was this: it was taken by Howard Vinal, or by some person acting under his direction, from the defendant's livery stable early in the morning, and used at the shop in its business until noon, then was taken to the defendant's stable to be baited; afterwards it was taken to the shop, and there used until evening, when it was returned to the defendant's livery stable, and was there kept until the following morning. While the horse was at the shop, according to the daily custom, on January 4, 1883, he was delivered to the plaintiff, under the transaction of sale; and, without notice thereof to the defendant of said transaction, at the close of that day was returned to the defendant's livery stable, and kept and used as previously under said custom, until replevied in this action.

The contract for the keeping of the horse between Howard Vinal and the defendant was, that for its keeping the defendant should be paid one half in cash and one half in groceries from the shop, and before the replevin the defendant, or some person by his order, had received groceries to the amount of $ 50 in part payment for the keeping. After January 4, 1883, and about ten days before the replevin, the defendant demanded money from Howard Vinal, or flour or sugar from the shop, in part payment of the sum due for the keeping of the horse. Howard promised to send flour for that purpose, but failed to do so, and in explanation told the defendant that the stock of his shop, horse, &c. had been sold by him to the plaintiff; and thereupon the defendant sent a person in his employ to take the horse, then at the shop in use as previously, and remove the same to his livery stable; and the horse was then and there removed, and remained in the defendant's livery stable until replevied in this action.

The plaintiff subsequently, at said livery stable, asked the defendant to give him a statement of how much he, the plaintiff, owed for the keeping of the horse, offering to pay the same; but the defendant refused to state any claim for the keeping of the horse against the plaintiff, declaring that the plaintiff owed him nothing for that keeping, but that his father, Howard Vinal, owed for that keeping; and thereupon this action was brought.

The foregoing is a statement of all the facts of which there was any evidence at the trial.

The defendant requested the judge to rule, that he had the right to...

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1 cases
  • Vinal v. Spofford
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 25, 1885

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