Philbrook v. Eaton

Colburn, J. The written instrument under which the plaintiff claims is a formal bill of sale, not a bill of parcels, and on its face purports to be the evidence of an absolute sale of the property therein described by the defendant to the plaintiff’s [400] intestate, in consideration of $250, which the defendant acknowledges that he received. The plaintiff, who by operation of law represents the personal property and rights of his intestate, sustains the same relation to the defendant, and to the property in controversy, that his intestate sustained before his decease. No question as to the right of creditors or purchasers without notice is raised. As between the plaintiff and defendant, no delivery of the property was necessary to pass the title. Parsons v. Dickinson, 11 Pick. 352. Packard v. Wood, 4 Gray, 307. The plaintiff, upon proof of the execution of the bill of sale, and payment of the consideration, which was sufficiently proved, prima facie, by the acknowledgment of the defendant in the bill, and proof of a sale of the same property by the defendant to Sawyer, in July 1879, the bill of sale being dated January 17, 1874, was prima facie entitled to recover of the defendant the value of the property at the time of the sale to Sawyer. To control the plaintiff’s ease, the defendant was allowed, under exception of the plaintiff, to introduce paroi evidence, which he claimed tended to show that the transaction was not a sale, but a mortgage, or pledge, and was without consideration. We are of opinion that this evidence, so far as it was admitted for the purpose of varying, explaining or controlling the bill of sale, was incompetent in an action at law, and should have been rejected. Pennock v. McCormick, 120 Mass. 275. Harper v. Ross, 10 Allen, 332. Whatever other effect the evidence introduced by the defendant might, if competent, have had upon the bill of sale, it failed to show any want of consideration. It tended to show that the bill of sale was given as part of the security for a loan of $250 from the plaintiff’s intestate to the defendant, which was a good consideration. The defendant’s second and third requests for rulings relate to the effect upon the bill of sale of the evidence he was improperly allowed to introduce; and we are of opinion that he has no ground of exception that these rulings were not made. Because he had succeeded, under objection, in introducing incompetent evidence, he was not entitled to except because the court did not give it the force he claimed for it. [401] The court without doubt ruled that the measure of damages ■ was the value of the property at the time of conversion. The sale to Sawyer constituted the conversion, and not the refusal to deliver the property to the plaintiff upon a subsequent demand. The objection of the defendant, that the existence of the goods at the time of demand had not been proved, and that the suit could not be maintained, because at the time of the conversion (probably meaning demand) the defendant .had no possession of the goods, or control over or interest in them, does not require notice. There was evidence for the consideration of the court, upon the question of value, in the particular description of the property and the consideration recited in the bill of sale, and the fact that the defendant had sold the property. The weight of this evidence is not for us to determine. Exceptions overruled.