Witherby v. Sleeper

Ames, J. The plaintiffs complain that this case was prematurely and improperly withdrawn from the jury, and that the presiding judge assumed the decision of a disputed question of fact. They claim that it was agreed at the time of the purchase that the property should not vest in the vendee until the purchase money should be paid. But we do not find in the report anything that can be truly described as evidence having a tendency to prove such an agreement. On the contrary, so far as the sale was accompanied with any condition of any kind, it was a condition in favor of the buyer. He appears to have reserved the right to return the property, if on trial he found it did not answer his purpose, or prove satisfactory to his foreman. It was to be wholly at his option, and not at that of his vendors, whether it was to be an absolute purchase or not. There is nothing in the case to indicate that he ever exercised, or claimed to exercise, the right to return the property. On the contrary, the evidence reported is to the effect that, although one of the articles required some alterations, the alterations suggested were made, and the witness has no doubt that they proved effective. No evidence to the contrary appears to have been given. Neither does it appear that, at any time before this suit was brought, the plaintiffs made any attempt to reclaim the property. On the contrary, they repeatedly called on the buyer to pay his bill. In letters sent to him on this subject, they request him to forward the amount of his bill in a draft on Boston ; they notify him that they are in want of “ the funds ” ; and again that they must have the money “ next week.” It is suggested in the argument, that the letters were intended merely to call for payment or return of the goods; but it is very clear that in terms they demand paymenj: in money, and, taken in connection with the fact that no demand for the return of the goods was made until this suit was brought, (a period of about five months,) they are strong indications that if the original delivery of them was accompanied with any condition on the part of the vendors, it was waived and the sale considered as absolute. [142] The plaintiffs’ claim had not even a scintilla of evidence, and there was no error in directing the jury to return a verdict for the. defendant. Denny v. Williams, 5 Allen, 1. Judgment on the verdict