Dunlap v. Gleason

Cooley J. In the writing given by Pollock to Gleason, the former acknowledged the receipt of the sewing machine, which he agreed to safely keep and carefully use, and not remove from Wayne county, and at the expiration of three months, return the same to Gleason, free of charge and incumbrance. Thus far, there is no intimation of an intended sale, and the words employed are aptly chosen to create a bailment. But it is then added that it is understood that if Pollock, within the three months, shall pay to Gleason sixty dollars, the said writing shall be null and void, and Gleason shall execute a bill of sale of the machine. In other words, Pollock may terminate the bailment and purchase the machine by the payment of $60 within the three months, at his option. We think the terms of this paper clearly show that Gleason did not intend to trust to the personal responsibility of Pollock, or to part with his title, conditionally or otherwise, until the sixty dollars was paid. In this the case differs from those cited on behalf of the plaintiff in error. Gleason has not taken from Pollock an alternative promise, leaving with him a choice in performance, but he has required an absolute undertaking for the return of the machine within a time limited. The further stipulation is in the nature of a defeasance of that undertaking, dependent not upon Pollock’s agreement to pay the price of the machine, but upon his actually paying it. Until such payment, the agreement to return remains in full force; and it is plain that Gleason did not intend to give credit on sale of the machine, but to sell only for cash payment. This being so, and the title remaining in Gleason, he had a right to replevy the machine, when Pollock put it [162] out of bis bands, whether the three months had expired or not. The bailment, by its express terms, imports a personal trust which could not be transferred. Judgment affirmed, with costs. Christiancy and Campbell, JJ. concurred. Martin Ch. J. did not sit.