Silsby v. Boston and Albany Railroad

Lathrop, J. We do not find anything in the facts set forth in the bill of exceptions to take the case out of the general rule that the sale was conditioned on the sending of a note by the buyer to the seller; and that whether there was a waiver of the [160] condition was a question of fact. Whitwell v. Vincent, 4 Pick. 449. Hill v. Freeman, 3 Cush. 257. Whitney v. Eaton, 15 Gray, 225. Farlow v. Ellis, 15 Gray, 229. Hirschorn v. Canney, 98 Mass. 149. Adams v. O'Connor, 100 Mass. 515. Nelson v. Dodge, 116 Mass. 367. Armour v. Pecker, 123 Mass. 143. Salomon v. Hathaway, 126 Mass. 452. Brownville Maine Slate Co. v. Hill, 175 Mass. 532. So far as the custom in the trade is concerned, the fact that it was not the custom to send the note until after the buyer should verify the quality and count of the lumber as compared with his order is immaterial. The defendant argued that this necessitates the unloading of the ear; but a delivery to the buyer would not necessarily be a waiver of the condition, as is held in many of the cases above cited. Nor can the fact that the buyer could, to a certain extent, suit his own convenience in removing the lumber from the custody of the carrier or the warehouseman make any difference. The lumber still remained the property of the sellers. As to the usage for the buyer to sell directly from the railroad subject to the company’s lien for charges, this is to be said, that the usage does not go far enough. It does not appear that a buyer of lumber may sell and pass a good title without acquiring a good title himself, and this in the present case Paul did not have. Moreover, it may be said that the controversy in this case is not between the plaintiffs and a purchaser for value, but between the plaintiffs and a person who has no more rights than Paul had. See Whitney v. Eaton, 15 Gray, 225, 226. The defendant asked for twenty-three instructions. Most of these were given. The eleventh request, on the authority of the cases above cited, was properly refused. We see nothing in the other requests for instructions which were refused which requires further discussion. Exceptions overruled.