WHITNEY v. ABBOTT

Sale, Conditional. Attorney at Law. Negligence. Damages. Evidence. If the vendor under a contract of conditional sale, which provides that the title to the article sold shall not pass to the purchaser until the purchase money has been paid in full, brings an action for the whole of the purchase money before all of the instalments are payable under the contract, this is an election to treat the sale as an absolute one, and on the bringing of the action the title passes to the purchaser.

If a gasoline engine is sold under a contract of conditional sale made by letter, which provides that the title to the engine shall not pass to the purchaser until the purchase money has been paid in full, and if the purchaser having received the engine refuses to sign the required contract and notes or to pay the money already payable under the contract, and the vendor employs an attorney at law to induce the purchaser to sign the contract and notes and to pay the money, and on the purchaser's refusal to do this authorizes the attorney to take such legal action as he may deem proper, but instructs him, whatever he does, to do nothing to lose the plaintiff's title to the engine, and thereupon the attorney brings an action against the purchaser for the whole of the purchase money although some of the instalments are not yet payable, thereby electing in the vendor's behalf to treat the sale as an absolute one and causing the title to the engine to pass to the purchaser, who shortly after becomes a bankrupt, the vendor in an action of tort for negligence against his attorney can recover the market value of the engine at the time the defendant caused the title to pass to the purchaser by bringing the action of contract. In such an action of tort the plaintiff properly may be allowed to put in evidence the contract which was prepared and signed by him and which the purchaser refused to sign.

SHELDON, J.

The rulings asked for by the defendant were rightly refused, and the instructions given to the jury were correct.

There was evidence that the sale of the gasoline engine made to Libbman by the plaintiff was merely a conditional sale, that Libbman, though he had received and was keeping the engine, had refused to carry out his agreement by paying the cash and giving the notes which had been stipulated for, and that the plaintiff told the defendant he did not want the engine, but the money for it, but instructed the defendant to do nothing to lose the plaintiff's title to the engine. The defendant then brought an action against Libbman in behalf of the plaintiff, in which he sought to recover the whole purchase price of the engine, together with some other smaller items; and set out also in his declaration the alleged conditional agreement. This action the defendant brought on the seventeenth day of October, 1901; the last instalment of the purchase money under the conditional agreement was not to have been paid until the first day of the following December. No doubt, if the defendant had brought suit only for the instalments of the purchase money which had then become due, he would not have recognized Libbman's title in the machine, and would not have waived any of the plaintiff's rights under the conditional agreement or have lost the plaintiff's title to the engine. But the plaintiff's right to hold the title to the engine, existing only under the conditional agreement with Libbman, would necessarily be waived by any final election to treat the sale as an absolute one; and we think that when the plaintiff brought his action for the whole purchase money, — a part of it according to the conditional agreement not having come due, — attached property of Libbman, and took judgment against him on his default, this did amount to an election to hold Libbman for the price as the owner of the property, treating the sale as an absolute one, and so to a repudiation of the original conditional agreement. Butler v. Hildreth, 5 Met. 49. Ormsby v. Dearborn, 116 Mass. 386. Seavey v. Potter, 121 Mass. 297. Bailey v. Hervey, 135 Mass. 172. There is nothing in Miller v. Hyde, 161 Mass. 472, relied on by the defendant, inconsistent with this doctrine. That case simply holds that the title to personal property which has been converted does not pass to the wrongdoer by the entry of a judgment against him for the value of the goods converted and a levy of the execution thereon, but remains in the plaintiff until he has received actual satisfaction. It goes upon the ground that by the modern rule the only election made by the plaintiff is that implied by law upon his receiving satisfaction for the value of his property. The case is put until actual satisfaction upon the same ground as a mere election of remedies not necessarily inconsistent with each other, and not involving the affirmance or waiver of any positive rights. Connihan v. Thompson, 111 Mass. 270, 272.

The instruction on the question of damages was correct. If the result of the failure of the defendant to comply with the plaintiff's instructions was to deprive the plaintiff of the title to the engine, the measure of damages was the market value of the engine at the time of bringing the action which deprived him of that right. Gilbert v. Williams, 8 Mass. 51. Wilson v. Coffin, 2 Cush. 316. Ashley v. Root, 4 Allen, 504.

The original lease or conditional agreement between Libbman and the plaintiff was rightly admitted in evidence. The plaintiff showed it to the defendant; it constituted a part of the case which the plaintiff gave to the defendant; and it was a part of the burden which the plaintiff assumed in this case to establish its existence as a valid agreement between Libbman and himself.

Judgment on the verdict.