W. P. Chamberlain Co. v. Tuttle

• Decision Date: 05 January 1909
• Citation: 71 A. 865,76 N.H. 171
• Parties: W. P. CHAMBERLAIN CO. v. TUTTLE.
• Court: New Hampshire Supreme Court

71 A. 865

76 N.H. 171

W. P. CHAMBERLAIN CO.

v. TUTTLE.

Supreme Court of New Hampshire. Cheshire.

Jan. 5, 1909.

Transferred from Superior Court, Cheshire County; Stone, Judge.

Action by the W. P. Chamberlain Company against William S. Tuttle. Order of judgment for defendant, and case transferred from the superior court. Judgment for defendant.

March 14, 1908, the defendant, sheriff of the county, duly attached upon a valid writ the property in question, which was furniture in a hotel at Marlborough, as the goods of George L. Cutting, without notice of the plaintiffs' claim. They claimed the property under a bill of sale from Cutting given the same day, but before the attachment. There was no delivery of the property to the plaintiffs, but it remained in the hotel, which was open and occupied by Cutting. The sale was made at the plaintiffs' place of business in Keene, six miles from the hotel, on Saturday afternoon. The plaintiffs did not then go to take possession of the property because there was not time enough to take up the carpets before dark, but they intended to take possession Monday morning, and so arranged with Cutting.

John E. Allen and Charles H. Hersey, for plaintiff.

Joseph Madden, for defendant.

PARSONS, C. J. In the absence of an exception to the order of judgment there is no question before the court. Assuming from the transfer of the case that the plaintiffs excepted to the order, they take nothing by such exception. By the terms of sale the property was left in Cutting's possession until the following Monday, without anything to indicate the change of title or to give notoriety to the sale. Such unexplained retention of possession is a conclusive badge of fraud, which renders the sale invalid as against a subsequent purchaser or attaching creditor without notice. "It is unnecessary to cite authorities to the point that a sale of chattels is invalid as to creditors of the vendor when the property is allowed to remain in his use and possession." Doucet v. Richardson, 67 N. H. 186, 187, 29 Atl. 635. See cases collected in Locke v. Brick Co., 73 N. H. 492-494, 63 Atl. 178. Evidence that it was more convenient to delay the delivery does not authorize a finding that delivery was impossible. If at the time of the sale manual delivery could not be made because the negotiators were at a distance from the property, the arrangement that the vendees should not go to the hotel where the vendor lived to take possession until a later date...