¶1The stipulation, in the contract of sale of the vessel from the defendant to the plaintiff, that the defendant should, at the end of the voyage, “take her back” and “have her ” at a certain price, clearly contemplated that the plaintiff, when the voyage was ended, should deliver or tender a bill of sale of the vessel to the defendant. It being agreed that, at the time when the plaintiff tendered a bill of sale, the vessel had become a wreck, abandoned and sunk in the ocean, the plaintiff *25fails to show that she existed at that time in the character of a ship, as the contract required, and therefore cannot maintain this action. Barr v. Gibson, 3 M. & W. 390, 400. Wells v. Calnan, 107 Mass. 514. Judgment affirmed.
128 Mass. 22
Thomas v. Knowles
Massachusetts Supreme Judicial Court
Decided November 3, 1879
Massachusetts Supreme Judicial Court · decided 1879-11-03
<p>A written agreement recited that A. had bought of B. a fractional part of a vessel, with the understanding that B. was “ to take her back at the end of the voyage ” at a certain rate; and that A. agreed that B. should “ have her at that rate.” In an action for breach of this agreement, by A. against B., it appeared that, after the vessel had ended that voyage and started on another, A. tendered a bill of sale of his share in the vessel to the defendant, but the vessel had then become a wreck, and had been abandoned and sunk in the ocean. Held, that the action could not be maintained.</p>
Cited by 2 later decisions — most recently September 1910
2 state decisions
Relies on Wells v. Calnan
Good law ✅— No negative treatment on recordhow we know
Decided 1879-11-03
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