C. B. Cottrell & Sons Co. v. Carter, Rice, & Co.

Morton, J. Whether the agreement under which Collins received the presses, and to which the plaintiff succeeded before the mortgage by Collins to Nickerson, was one of hiring simply, or was a conditional sale, no title in the presses passed to Collins or could pass under it till the instalments were all paid. Wentworth v. Woods Machine Co. 163 Mass. 28. Robinson v. Bird, 158 Mass. 357. Nichols v. Ashton, 155 Mass. 205. Hirschorn v. Canney, 98 Mass. 149. Coggill v. Hartford & New Haven Railroad, 3 Gray, 545. Ex parte Crawcour, 9 Ch. D. 419. Crawcour v. Salter, 18 Ch. D. 30. Benjamin, Sales, (6th ed.) § 345. The lessor or vendor could reclaim the property from one who had purchased of Collins in good faith and without notice. Wentworth v. Woods Machine Co., Hirschorn v. Canney, and Coggill v. Hartford & New Haven Railroad, ubi supra. The position of the defendant can be no stronger because it claims through a mortgage from Collins than it would be if it claimed through a vendee from him. If Collins had paid the instalments as they fell due, or had complied with the other conditions, the presses would have belonged to him, and the mortgage would have been good. Currier v. Knapp, 117 Mass. 324. Crompton v. Pratt, 105 Mass. 255. Day v. Bassett, 102 Mass. 445. But neither he nor any one claiming under him acquired any rights by reason of his failure to pay the instalments. On the contrary, the agreement expressly provided that, in such a contingency, the plaintiff could take possession of the presses and remove them “ as though the agreement of hire had never been made and entered into.” We see nothing that cuts down this right on the part of the plaintiff. When the plaintiff took possession in October, 1894, it had no notice, constructive or otherwise, of the mortgage which Collins had given to Nickerson. We do not mean to intimate that, if it had, its rights would have been affected. The recording of the mortgage was not constructive. notice to the plaintiff. Greorge v. Wood, 9 Allen, 80. Bates v. Norcross, 14 Pick. 224. Collins was in default in the payment of the instalments, and it was competent for the plaintiff to take possession of and transfer the presses to [160] the Collins Press Corporation, (Hubbard v. Bliss, 12 Allen, 590,) and, so far as appears, that was what was done. There was no dispute as to the facts, and the only ruling which the defendant asked for was that the court should rule that, upon all the evidence, the plaintiff could not recover. This the court rightly refused to do, and ordered a verdict for the plaintiff, to which the defendant excepted. Upon the undisputed facts it seems to us that the ruling was clearly right. The plaintiff’s rights were not affected by the omission of Collins, if it was an omission, to avail himself of the provisions of Pub. Sts. c. 192, § 13. The Collins Press Corporation also defaulted in its payments. While the default continued, the plaintiff’s agent entered and tagged the presses in question with the plaintiff’s name. We think that this constituted a taking possession under the agreement, and that the subsequent conduct of the defendant in removing the tags and selling the presses under the mortgage, and purchasing them at the sale, constituted a wrongful interference with and unlawful detention of the plaintiff’s property, and that the plaintiff could maintain replevin without any demand. Salomon v. Hathaway, 126 Mass. 482. The defendant took nothing by its tender. In the view which we have taken of its rights, the tender was as if made by a stranger. According to the view which we have taken, the refusal to direct a verdict, as well as directing one for the plaintiff, was right. Exceptions overruled.