Whitney v. Abbott

• Decision Date: 02 March 1906
• Citation: Whitney v. Abbott, 191 Mass. 59, 77 N.E. 524 (Mass. 1906)
• Parties: WHITNEY v. ABBOTT.
• Court: Supreme Judicial Court of Massachusetts

191 Mass. 59

77 N.E. 524

WHITNEY v. ABBOTT.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1906

COUNSEL

John J. Higgins, for plaintiff.

Wm. A Abbott, for defendant.

OPINION

SHELDON J.

The ruling asked for by the defendant was rightly refused, and the instructions given to the jury were correct. There was evidence that the sale of the gasoline engine made to Libbman by the plaintiff was merely a conditional sale, that Libbman though he had received and was keeping the engine, had refused to carry out his agreement by paying the cash and giving the notes which had been stipulated for, and that the plaintiff told the defendant he did not want the engine, but the money for it, but instructed the defendant to do nothing to lose the plaintiff's title to the engine. The defendant then brought an action against Libbman in behalf of the plaintiff, in which he sought to recover the whole purchase price of the engine, together with some other smaller items; and set out also in his declaration the alleged conditional agreement. This action the defendant brought on the 7th day of October, 1901; the last installment of the purchase money under the conditional agreement was not to have been paid until the 1st day of the following December. No doubt, if the defendant had brought suit only for the installments of the purchase money which had then become due, he would not have recognized Libbman's title in the machine, and would not have waived any of the plaintiff's rights under the conditional agreement or have lost the plaintiff's title to the engine. But the plaintiff's right to hold the title to the engine existing only under the conditional agreement with Libbman would necessarily be waived by any final election to treat the sale as an absolute one; and we think that when the plaintiff brought his suit for the whole purchase money, a part of it according to the conditional agreement not having come due, attached property of Libbman, and took judgment against him on his default, this did amount to an election to hold Libbman for the price as the owner of the property, treating the sale as an absolute one, and so to a repudiation of the original conditional agreement. Butler v. Hildreth, 5 Metc. 49; Ormsby v. Dearborn, 116 Mass. 386; Seavey v. Potter, 121 Mass. 297; Bailey v. Hervey, 135 Mass. 172. There is nothing in Miller v. Hyde, 161 Mass. 472, 37 N.E. 760, 25 L. R. A. 42, 42 Am. St. Rep. 424, relied on by the defendant, inconsistent with this doctrine. That case simply holds that the title to personal property which has been converted does not pass to the wrongdoer by the entry...