It is perhaps not a pure question of law, whether, on the facts found, the successive purchases of goods are to be regarded as made under one entire contract or under separate contracts. The parties may have intended that the goods purchased after the first agreement should be held under the original agreement, in the same manner and with the same rights in each party as if they had been a part of the original purchase, or that each successive lot of goods purchased should be held as *387a separate purchase upon the same terms and conditions as are contained in the original agreement. The precise question is, whether it was the intention of the parties, as expressed in the written agreements, construed in reference to the circumstances under which they were made, and the conduct of the parties, that the title to the goods first purchased should pass to the plaintiff, if and when she paid for them according to the terms of the agreement under which she first purchased them, or should not pass to her unless and until she also performed the agreements subsequently made, when from time to time other goods were delivered to her. A similar question arises in regard to the goods delivered on March 23. The plaintiff once had the right to obtain the title to the goods first purchased by paying for them according to her agreement of March 8. Whether she had waived or lost this right by her subsequent purchases and agreements was the question in dispute.
We are of opinion that it was competent for the justice before whom this case was tried to find, on the evidence reported and the facts found, that the successive purchases were in this respect intended to be and were upon separate contracts; that it does not appear that in so finding he violated any principle of law; and that, although it appears by the report that he so “ruled and held,” this is not to be considered as a ruling that this conclusion necessarily follows, as matter of law, from the facts found, but as a ruling that such a conclusion is warranted in law by the facts found, and is the actual conclusion drawn by him.
The ruling “that, as matter of law, the payments of cash made by the plaintiff should be applied to the earliest indebtedness ” was justified by the facts found, including the fact that “ there was no evidence as to the appropriation of any of the payments, by either party, to any particular portion of said articles.” Crompton v. Pratt, 105 Mass. 255. Worthley v. Emerson, 116 Mass. 374. It follows necessarily from the preceding findings and rulings, that, when these payments “ equalled the aggregate price of any such separate lot, it operated as a payment for such lot, and vested the property in the plaintiff.”
The assignment to Julia A. Gould by the plaintiff, if it be considered as an assignment of property in personal chattels, *388and not an assignment of a chose in action, taken in connection with the paper given by Gould to the plaintiff, would constitute, as between the parties, either a mortgage or a pledge, and would be discharged by a payment of the money which the assignment was given to secure; and no formal reassignment was necessary to vest the property in the plaintiff. It does not appear that Gould ever had possession of the property, and it does appear that at the time the property was taken by the defendants it was in the possession and use of the plaintiff.
It is difficult to understand what the contention of the defendant Clark is, in regard to estoppel. His first request for instruction is, that, “ If the defendant Clark paid Boyce Brothers $400, upon or by reason of representations made by the plaintiff to him that that amount was due Boyce Brothers, she is estopped to deny it now, and is estopped, as to him, to deny that that amount did not apply to any particular goods.” The evidence was that the plaintiff asked Clark to assume her indebtedness to Boyce Brothers, which she represented to be $400, and to allow her to pay him as they might arrange, and that “ nothing was said as to the $400 being due upon any particular part of the furniture.” Clark declined to do this, and afterward, on his own account and for his own benefit, bought the interest of Boyce Brothers in the goods. It does not appear that the plaintiff made any statement to Clark that the $400 was due on all of the goods, or that she made any statements to Clark with the design that he should purchase the interest of Boyce Brothers in the goods upon his own account and for his own benefit. This was done by him for his own purposes, and not by any inducement of the plaintiff. There is no estoppel.
The plaintiff can maintain this action to recover possession of such of the articles replevied as she owned at the date of the writ; and' the exceptions of the defendant Clark must be overruled.
The first request of the plaintiff for instructions was rightly refused. The payments made by Clark were not for her benefit. Her second request for instructions was also rightly refused. The action was brought on December 22, 1879. At that time, the goods were in the possession and custody of Clark, and Boyce Brothers “ neither had, nor claimed to have, any right, interest *389or title in, or custody or control of, said furniture, or any portion thereof.” This action of replevin cannot therefore be maintained against Boyce Brothers. Hall v. White, 106 Mass. 599. Richardson v. Reed, 4 Gray, 441.
The rulings of the presiding justice were correct, and there must be Judgment on the findings.