164 Mass. 570 | Mass. | 1895
We assume that the title to the goods remained in Boehm and Company until the purchase price should be paid, and that the plaintiffs, to whom as partners Boehm and Company consigned the goods, had the rightful possession of them, with the right to sell them and to pay for them as they were sold. The defendant having seized the goods upon an execution against one of the plaintiffs, contends that this action cannot be maintained, because before its commencement Boehm and Company had brought their action against him for the conversion of the goods, returnable to the same court, and that their action is still pending. But the pendency of that action has no effect upon the title of the goods ; Miller v. Hyde, 161 Mass. 472, 482; and therefore constitutes no defence to the present action, whether pleaded in abatement or proved as a defence upon the merits under the general issue. No question of pleading, or as to the measure of the plaintiffs’ damages, is raised by the exception, which is merely to the refusal to rule that the present action could not be maintained. The plaintiffs had a special property in the goods, and lawful possession, and could maintain trover. Burke v. Savage, 13 Allen, 408. Shaw v. Kaler, 106 Mass. 448.
Exceptions overruled.