214 Mass. 217 | Mass. | 1913
The exceptions state that the pleadings may be referred to, and theanswer consists only of a general denial under which the defense raised by the various requests would not be open. But no allusion to the pleadings having been made at the trial or at the argument, the questions raised by the record are to be treated as properly before us. Ridenour v. H. C. Dexter Chair Co. 209 Mass. 70, 78.
The title to the watch and ring for the conversion of which the action is brought was in the plaintiff when pledged to the defendants by Marion E. Davis as security for the payment of her own debt. It is contended under the second and third requests that she had been entrusted with the sale of the property within the meaning of R. L. c. 68, commonly known as the “factors act,” and that the plaintiff cannot maintain the action, as no tender has been made of the amount advanced. Assuming that in receiving and retaining the pledge, upon which they claim a valid lien, the defendants acted in good faith, but of which they offered no evidence, the judge was warranted in finding that, although she was in the employment of the company, watches and rings were taken by her only to be exhibited or delivered to prospective customers whom she reported had been interviewed or secured. If a sale followed, either a conditional bill of sale, where
The bill of sale or lease returned for the watch and ring was fictitious, and upon discovery of the fraud the plaintiff settled with its employee and executed a release, although not under seal, of any and all claims against her. The defendants by the fourth, fifth, sixth, seventh and eighth requests asked the judge to rule, that the claim against them had been thereby discharged, and that as Davis and themselves were successive tortfeasors the release of one released all. The appropriation of the plaintiff’s chattels by Davis was felonious under R L. c. 208, § 26, and while the outcome of her acts and the assertion of a lien by the defendants has deprived the plaintiff of its property, yet the wrong did not result from their concerted or concurrent action, as the defendants are not shown to have known at the time of the pledge that the watch and ring had been stolen. Chamberlin v. Shaw, 18 Pick. 278, 284. Strickland v. Barrett, 20 Pick. 415, 417. Feneff v. Boston & Maine Railroad, 196 Mass. 575. It is obvious that the plaintiff could have maintained an action against Davis for all losses sustained; but if the defendants at any time before demand by the plaintiff had returned the pledge to her, they would not have been liable for a conversion. Leonard v. Tidd, 3 Met. 6. The settlement was of an unliquidated demand. It was not the acceptance of a part of an undisputed debt in satisfaction of the whole, as in Gilman v. Cary, 198 Mass. 318, and Specialty Glass Co. v. Daley, 172 Mass. 460. The consideration, moreover, was furnished by a third party. The terms of the instrument are unambiguous and unconditional. It is not a mere accountable receipt or acquittance explainable by extrinsic evidence, but it is in legal effect a full discharge. Com
The refusal of these requests, and of the first request, that upon all the evidence the plaintiff could not recover, requires us to sustain the exceptions.
So ordered.