McDonough v. Prescott
Supreme Court of New Hampshire
Replevin, for a wagon. The defendant justified under an attachment, as the property of Derry & Go. The plaintiff introduced evidence tending to show that Derry & Co. were carriage-makers ; that they contracted to build a grocery wagon for him complete, except the lettering on it, for $165; that he paid them in full before the attachment, and before the wagon was completed ; that after it was completed and before it was attached he saw it and accepted it, but not wishing to…
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Replevin, for a wagon. The defendant justified under an attachment, as the property of Derry & Go. The plaintiff introduced evidence tending to show that Derry & Co. were carriage-makers ; that they contracted to build a grocery wagon for him complete, except the lettering on it, for $165; that he paid them in full before the attachment, and before the wagon was completed ; that after it was completed and before it was attached he saw it and accepted it, but not wishing to use it then, and having no place convenient to store it, he requested Derry & Co. to allow it to remain on their…
1Opinion of the CourtClark, J.
Upon the acceptance of the wagon by the plaintiff, the executory contract terminated in a completed sale, as between the plaintiff and Derry & Co., but there was no change of possession. As a matter of convenience to the plaintiff, the wagon was allowed to remain on the premises of Derry & Co. until it was attached by their creditors. The general rule is, that a sale unaccompanied by a change of possession is fraudulent and void as to creditors, the retention of possession by the vendor being always prima facie, and, if unexplained, conclusive, evidence of a secret trust. It is said by…
2Cases cited2 opinions
- Carter v. WatkinsSupreme Court of Connecticut · 1841
- Hall v. GaylorSupreme Court of Connecticut · 1871