Opinion
No. 3164.
Decided May 27, 1940.
As between buyer and seller, delivery of ascertained goods or chattels is not essential to transfer of title; for "the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred" (P. L., c. 166, s. 18). The question of intention in such case is one of fact.
In replevin, when the defendant files a plea of title a finding in favor of the plaintiff implies a finding of title in him.
REPLEVIN, for a boat. The defendant filed a plea of title. Trial before a referee. At the close of the plaintiff's evidence the defendant moved "to dismiss the action" upon the ground that the contract between the plaintiff and the defendant called for the building of a boat to be delivered in the future and that title to the boat never passed to the plaintiff. This motion was denied and the defendant excepted. The referee found for the plaintiff, and in accordance with his report, the Superior Court entered judgment in favor of the plaintiff for one cent damages, to which the defendant excepted. Defendant's bill of exceptions was allowed by Lorimer, J.
The plaintiff's evidence tended to prove that on or about July 10, 1937, he made a verbal agreement with the defendant by which the defendant was to build for him a fourteen-foot boat, and in payment therefor the plaintiff was to deliver to him a certain Pontiac automobile together with parts of another car "to make a trailer" and was to pay him $12 in cash. On July 19, 1937 the plaintiff went to the defendant's place of business at Ossipee for the purpose of completing the transaction. It then appeared that although the hull of the boat was complete, the painting upon it had not been finished. The plaintiff, however, delivered to the defendant the Pontiac automobile and the trailer parts and paid him the $12 called for by their contract. The defendant thereupon executed and delivered to the plaintiff a document which the referee regarded as a bill of sale, reading as follows: "July 19, 1937. Sold to Thomas J. Sandford one 14-foot boat. Received payment in full. N.E. Nickerson." The boat was left in the possession of the defendant who promised to have the painting done the next week. Subsequently the defendant refused to deliver the boat to the plaintiff, who thereupon brought the present action of replevin.
Justin A. Emery, Snow Peyser (Mr. Snow orally), for the plaintiff.
Rolland R. Rasquin, for the defendant.
The only issue raised by the defendant's plea was one of title. Section 18 of the Uniform Sales Act, which is in force here, (P. L., c. 166, s. 18) provides that "The property in them [ascertained goods] is transferred to the buyer at such time as the parties to the contract intend it to be transferred." The question of intention is one of fact and the referee, by his general findings in favor of the plaintiff, inferentially found that title had passed to him. The evidence regarding the transaction of July 19, when the plaintiff paid the entire purchase price for the boat and the defendant executed the so-called "bill of sale," fully sustained the referee's conclusion.
Exceptions overruled.