Hartley v. Rotman

Braley, J. It is conceded that at the time the wool was sold and delivered nothing was said as to the defendant’s ownership. But by having possession, coupled with the act of sale, he represented himself to be the owner with the legal right of disposal, and this conduct was equivalent to an implied warranty of title in him. Stedman v. Lane, 19 Pick. 547, 551. Dorr v. Fisher, 1 Cush. 271, 273. Whitney v. Heywood, 6 Cush. 82, 86. Bennett v. Bartlett, 6 Cush. 225. Brown v. Pierce, 97 Mass. 46. Shattuck v. Green, 104 Mass. 42, 45. Stratton v. Hill, 134 Mass. 27, 29. Boston & Albany Railroad v. Richardson, 135 Mass. 473, 474, 475. See Sales Act, St. 1908, c. 237, § 13. The defendant now makes no contention that the plaintiff, having been called upon to surrender the wool to those who claimed [377] to be the true owners, should not have yielded possession without suit, or affording to him an opportunity to retake it, because the breach of warranty, if any, occurred at the time of the sale, when the cause of action also accrued. Grose v. Hennessey, 13 Allen, 389. Perkins v. Whelan, 116 Mass. 542. The second and fourth requests were refused rightly. If the exception to the admission of evidence is treated as waived because not argued, the only question left for decision is whether there was testimony from which the jury could find that the plaintiff, upon whom rested the burden of proof, had returned the wool to the lawful owner. The validity of the defendant’s title rested, according to his own admission, upon an abandonment of a portion of the wool, which then had been secured by the boat men from whom he made the first purchase, and a sale to his vendor by the Underwriters Salvage Company from whom he made the second purchase. There was, however, abundant proof that this board, shortly after the fire had been substantially extinguished, took and retained possession through their manager of all the property at the pier, including the wool. It also appeared that the manager alone was authorized to see to the salving and sale of the property, and, he having been called as a witness, if believed, his testimony very plainly showed that there had been no abandonment, and that, while sales of wool had been made, none of the parcels sold included the plaintiff’s purchases. In this state of the evidence the first ruling requested could not properly be granted, and the third so far as it correctly stated the law was embodied in the instructions given to the jury, to whose decision the dispute was properly submitted. We find no error of law at the trial, and the order must be Exceptions overruled.