Porter v. Pettengill

Parker, C. J.

The first question arising in this case is settled, in effect, by the case, Sargent vs. Gile, 8 N. H. Rep. 325 . The cases there cited, where it was held that if one *301 receive goods of another on a contract by which he has a right to return them or pay a stipulated price, the property will pass if well founded, are distinguishable from cases of this character, and do not apply. Where the transaction is in reality a sale of the article, with a stipulation that the vendee shall have an election to rescind the contract, at the expiration of a certain time, by a return of the article sold, or to pay the stipulated price, the property may perhaps well be held to pass ; for in such case the terms of the contract import a sale, and the party who receives the goods holds them in his absolute disposal, and may transfer them whenever he pleases.

The instrument in evidence, in Marsh vs. Wickham, 14 Johns. 167 , cited for the defendant, was — “ Received the following leather, &c., which we agree to pay for at the following rate, &c. — with the privilege of returning any quantity of the said leather which may remain on hand when a settlement is made.” And it was held that this showed a sale, and not a delivery to sell on commission, and that parol evidence was inadmissible to show the latter. The court said “ the privilege which the defendants had of returning what remained unsold of the leather, was a stipulation for the benefit of the defendants in their payment for the leather.”

But in the case now before us it was not the intention of the parties to make a sale, or give to Russell any such right to dispose of the goods. The plaintiffs, as it appears from the receipt, did not intend to part with the property until they had received their pay.

Russell signs an agreement, by which he acknowledges the receipt of the stove — the value is fixed, and he is to pay so much per month, or return it. If he failed to pay, it became his duty to return the property, and there are no words of transfer, or any thing to indicate that the parties intended any thing more than a bailment until the price was paid. It was in effect an agreement that he might have the property on paying for it, and the use of it in the mean time, if he should pay the instalments. This is not controlled or con *302 tradicted by the entry in the plaintiffs: books, which may have been well intended as a memorandum by which the plaintiffs could ascertain when Russell had complied with his contract.

It was competent for the parties to that bargain to make a contract of that character, by which the property should not pass until it should be paid for. 8 N. H. Rep. 325 ; 4 Mass. R. 405 , Hussey vs. Thornton; 17 Mass. R. 606 , Marston vs. Baldwin. The latter is a very strong case for the plaintiffs.

The position of the defendant that here was a sale, and a re-sale requiring a re-delivery of the property in order to perfect it, is not, therefore, sustained. Without the agreement which was afterwards made, and by which the contemplated purchase was ended, the plaintiffs maintain a title to the property at the time it was taken by the defendant, and the instruction to the jury was substantially correct.

In this view of the case there seems to be no objection to the admission of the witness. If he were not interested against the party calling him, his interest was balanced.

Judgment for the plaintiffs.