Pokross v. Champagne

De Cotjrct, J. The- defendant, Louis Champagne, lent to one Mary Gaboriau the sum of $300, charging her $50 therefor, and taking as security a mortgage on an automobile. The mortgage was in the form of an ordinary bill of sale of the machine to Champagne, and a separate agreement from him to sell it back to her, provided that within sixty days she should pay the $350, and “also pay to whoever shall repair said automobile the cost of said repairs as is now ordered to bé done at Marais’ repair shop in Fall River.” Later Mary Gaboriau, by an informal instrument, assigned all her rights in the automobile and agreement to the plaintiff Israel Pokross. The automobile was in the possession of the defendant as mortgagee. Before the expiration of the sixty days Pokross undertook to tender to the defendant the money due to him, and on March 14, 1916, brought this writ of replevin. The jury specially found that the defendant had waived a tender of the amount of the repair bill; and the judge ordered a verdict for the plaintiff. The defendant excepted to this direction, and to the judge’s refusal to direct a verdict in his favor. On the main issue, that of tender, the jury could find these to [393] be the facts: Before the expiration of the sixty days the plaintiff produced and offered to the defendant the $300 loan and $50 interest, but the defendant refused to take it, and demanded $50 more, and also payment for a storage battery and platinum points, which he said he had ordered. The repairs referred to in the agreement consisted of painting, which had been ordered by the mortgagor, and for which the agreed price was $55. Before making the tender of $350 Pokross went to the shop of Marois for the purpose of paying this bill, but the man who had done the work was out. He went there again after tendering the $350 (having told the defendant that he was going to do so) but learned that the defendant had anticipated him, and paid the bill. A further tender of the $350 in cash, and an offer to pay the painting bill, were made by the plaintiff when he went to the defendant’s house with the sheriff and the replevin writ. We disregard this last tender as it was made after the writ was issued. See Doody v. Collins, 223 Mass. 332, 334; Martin v. Bayley, 1 Allen, 381. The earlier tender was complete as to the $350. The bill for repairs ordered by the mortgagor, amounting to $55, was payable by the mortgagor or by the plaintiff, her assignee, to the person who did the work. ' The plaintiff went to the workshop twice for the purpose of paying it. The defendant, who was under no obligation to pay it, did so with the result, and apparently with the design, of making it impossible for the plaintiff to make the payment. The jury well could find that by thus preventing the plaintiff from paying the bill for painting, and demanding $50 more than was due, the defendant waived actual payment, and put the plaintiff in the position of a mortgagor who has tendered payment of the mortgage debt. Schayer v. Commonwealth Loan Co. 163 Mass. 322. It seems apparent that the only questions affecting liability on which the parties were at variance in the trial court were (1) whether the transaction between Mrs. Gaboriau and the defendant Champagne was an absolute sale or a mortgage and (2) whether the defendant waived the payment of the repair bill. These issues were submitted to the jury, under instructions to which no exception was taken. When they were answered in favor of the plaintiff, no further question of fact was suggested, or was in dispute. He was “a person lawfully claiming under” [394] the mortgagor, Mrs. Gaboriau; by tendering performance, he was in the position of one who had performed the condition of the mortgage according to its terms; he became entitled to have the automobile. “forthwith restored” to him, and to recover it in an action of replevin. R. L. c. 198, § 4. Weeks v. Baker, 152 Mass. 20. Exceptions overruled.