59 Mass. 147 - Wilkins v. Holmes — 59 Mass. 147

Levi Wilkins & another vs. Henry D. Holmes. B., having contracted with S. to build a house for him on S.’s land, and having carried and deposited a quantity of lumber there for that purpose, S. made a bill of sale of the lumber and contract to W. for a valuable consideration, and delivered the lumber, and W. made payments to B. on account of the contract, it was held, that there was no sale and delivery of the lumber by B. to S., and that the sale by S. to W. was unauthorized and void as against B. and his creditors. This case was submitted to the court of common pleas, • and to this court by appeal, upon an agreed statement of facts, from which it appeared as follows : — On the 5th of January, 1848, Bradbury entered into a written contract with Sargent, to erect a house for the latter in Brighton, and soon after caused a quantity of lumber, consisting of boards and timber, to be carried to Sargent’s premises, for the purpose of being used in the construction of the house. Before any use had been made of the lumber, the plaintiffs purchased the same, together with the contract for building the house, of Sargent, and took a bill of sale therefor, dated the 22d of February, 1848, and receipted by Sargent, who, at the same time, delivered the lumber to them. The plaintiff, in pursuance of the provisions of the building contract, made payments to Bradbury, and to his order, on the 21st and 22d of February, 1848. On the 25th of February, the lumber was attached by the defendant, as the property of Bradbury; whereupon the plaintiffs brought this action of replevin to recover the same. J. G. Park, for the plaintiffs, cited Jones v. Witter, 13 Mass. 304; Stockbridge v. W. Stockbridge, 14 Mass. 257; Shumway v. Rutter, 8 Pick. 443; Whitwell v. Vincent, 4 Pick. 449; Sumner v. Hamlet, 12 Pick. 76. H C. Hutchins, for the defendant. — By the Court. (majority) By the Court. Upon the facts agreed, the question is, whether the boards and timber replevied were the property of the plaintiffs or of Bradbury. The plaintiffs claim title under an alleged sale of the property from Bradbury to Sargent, and a sale from him to the plaintiffs. But there is nothing in the statement of facts, to support the alleged sale from Bradbury to Sargent. The boards and timber were delivered to Sargent, to be used in completing the contract between him and Bradbury; and Sargent’s sale to the plaintiffs was unauthorized and void as against Bradbury. The defendant, therefore, who attached the boards and timber, as the property of Bradbury, is entitled to a return. Judgment for the defendant.