173 Mass. 554 | Mass. | 1899
The testimony tended to show that McEvoy and three teamsters and a man by the name of Thomas were sent out to the plaintiff’s house to foreclose the mortgage, and that McEvoy was also instructed by one of the defendants to deliver to the plaintiff a notice of the foreclosure. It also appeared that McEvoy had been seen at work in the defendants’ place of business though the witness could not tell what kind of work he was doing. This was the substance of the testimony as to McEvoy’s authority to act in regard to the matter of tender. If the plaintiff relied on the tender to McEvoy, the burden was on her to show that the tender properly could be made to him. The evidence failed to show that he was an agent to whom a tender properly could be made and the testimony offered by the plaintiff for the purpose of proving that a tender was made to him was rightly excluded. Tuthill v. Morris, 81 N. Y. 94. Bingham v. Allport, 1 N. & M. 398.
There was no evidence, from the course of business or otherwise, that he had any authority to receive the money for the defendants, or that he was their agent except for the specific purpose for which he was sent to the plaintiff’s house.
The count for an assault imported a direct assault by the defendants. At the trial it appeared that neither of them was present, and there was nothing tending to show that either of them had commanded or authorized the assault. As the count stood, therefore, the evidence that was offered of an assault by McEvoy was incompetent. If the plaintiff sought to hold the defendants because of an assault committed by McEvoy while
We think that on the remaining count, which was for conversion of the piano, there was error on the part of the court in directing a verdict for the defendants. The count was a general one, and not confined to any particular act of conversion. Under such a declaration there is no rule of law of which we are aware which limits the plaintiff’s proof to one act of conversion. It appeared that on the day after McEvoy went to the plaintiff’s house, her husband went into the defendants’ place of business and tendered on her behalf $60 in payment, but the defendant Hooker said that -he would not take less than $100 in payment of the mortgage. It was after this that the piano was sold by the defendants. It was agreed that, under St. 1888, c. 388, and St. 1892, c. 428, the balance due on August 17,1897, the date of the last payment and the day on which McEvoy and the teamsters and Thomas were sent to the plaintiff’s house to remove the piano, was $11.47, and that the $60 tendered would cover all expenses of foreclosure and the balance due as aforesaid. The effect of the tender was, if not to discharge the lien of the mortgage, at least to render the subsequent sale of the piano by the defendants clearly tortious. Schayer v. Commonwealth Loan Co. 163 Mass. 322. Exceptions sustained.
