Harlow v. Hall

Endicott, J. The case finds that William H. Ivers sold the pianos to the plaintiff, and gave to him a bill of parcels; and that the plaintiff thereupon gave a' lease of the pianos to Ivers. There was no delivery of the pianos to the plaintiff, except such as might be implied from the execution and delivery of the papers, and Ivers retained possession of the pianos as before the purchase. As between the plaintiff and Ivers, the title to the pianos passed without delivery; but as against a subsequent purchaser from Ivers in good faith, it did not pass, for there was no actual or constructive delivery of the property. Carter v. Willard, 19 Pick. 1. Burge v. Cone, 6 Allen, 412. Dempsey v. Gardner, 127 Mass. 381, and cases cited. This case is not to be distinguished from Packard v. Wood, 4 Gray, 307. In that case; as in this, there was a bill of sale of certain personal property, accompanied by a lease of the same from the vendee to the vendor, but there was no actual delivery; and it was held that there was not sufficient evidence of a delivery of the property as against a subsequent attaching creditor. The plaintiff’s title cannot, therefore, avail against the defendant, Avho, in good faith, bought the property of Ivers, and took possession of it. Exceptions overruled.