Opinion
Opinion May 6, 1929.
CONSTRUCTION OF INSTRUMENTS. CONDITIONAL SALES. R. S., CHAP. 114, SEC. 8.
When an error exists in an instrument it must, until duly reformed, be interpreted according to its terms.
In the case at bar the buyer did not sign a writing that the title to the particular automobile, bargained and delivered to him, should, pending payment, remain in the seller. The agreement which the buyer signed related to the title to a very similar but none the less a very different automobile.
The imperative provision of Chap. 114, Sec. 8, R. S., being unmet, no conditional sale was effected but a sale was made on credit.
The seller undertook to sell the automobile No. 779690 again, this time to the plaintiff, but the undertaking was to no purpose.
On exceptions by plaintiff. An action of replevin for one Hudson automobile, maker's number, 779690. Defendant pleaded the general issue and title in itself, denying plaintiff's title, and praying for the return of the property. On trial without jury the presiding Judge made certain findings of fact and ruled that as a matter of law judgment should be for the defendant and for the return, and assessed damages for the taking in the sum of $125. Plaintiff excepted to the ruling of the Court.
It appeared that one Austin, an automobile dealer, sold a Hudson car carrying serial No. 779690 to one Vigue taking back a conditional sale contract, with a Holmes note attached, listing the serial number of the auto, however, as "779610." Austin assigned this contract and note to the defendant. Vigue failed to make the payments as agreed and the defendant repossessed itself of the car. Later, Austin, becoming involved in financial difficulties, entered into arrangements with plaintiff for financial assistance. Plaintiff turned over to Austin an $800 note of Austin's, which he (plaintiff) held and received therefor a bill marked "Paid" for one Hudson Automobile, Serial No. 779690, which was the correct number of the car. Plaintiff made demand on defendant to deliver the car to him, and thereafterward replevied the car. Action was brought as above set forth. Exception overruled.
The case appears in the opinion.
Berman Berman, for plaintiff.
Abraham Breitbard, Max L. Pinansky, for defendant.
SITTING: WILSON, C. J., DUNN, STURGIS, BARNES, PATTANGALL, FARRINGTON, JJ.
An action of replevin, heard (jury waived) in the Superior Court for Cumberland county, with the right of exception reserved. Under the general issue, defendant pleaded title in itself and traversed title in plaintiff. The court ruled that, on the right to immediate possession, the plaintiff had not made his case. An exception saved the point.
In Maine, on February 6, 1928, a bargain was made concerning an automobile, the seller and the buyer intending to consummate a conditional-sale agreement, which would be incorporated by reference in a purchase-price note. The serial number of the automobile, distinguishing it from all other automobiles of the same make, was 779690. The seller delivered that automobile into the possession of the buyer. The buyer executed to the seller a conditional-sale agreement, sufficiently describing the automobile which had been delivered to him, except as to the serial number, this being given as 779610.
There is a statute that, to be valid, an agreement, that the property or title to a bargained and delivered chattel shall remain that of the seller till paid for, must be in writing and signed by the person to be bound thereby. R. S., Chap. 114, Sec. 8.
The buyer did not sign a writing that the title to the particular automobile, bargained and delivered to him, should, pending payment, remain in the seller. The agreement which the buyer signed related to the title to a very similar, but none the less a very different, automobile.
It matters not that the error, for such the ruling judge apparently found it to be, might have resulted from mutual mistake on the part of the parties to the transaction. The instrument must, until duly reformed, be interpreted according to its terms. Martin v. Smith, 102 Me. 27.
The imperative provision of the statute being unmet, no conditional sale was effected, but a sale was made on credit. See, in strong analogy, Holt v. Knowlton, 86 Me. 456. See, too, less strongly, but nevertheless pertinently, in its sentence, "The note does not refer to the wagon." Boynton v. Libby, 62 Me. 253.
The seller undertook to sell the automobile 779690 again, this time to the plaintiff, but the undertaking was to no purpose.
Exceptions overruled.