Bursley v. Hamilton, 32 Mass. 40

Bursley v. Hamilton

32 Mass. 40 | Mass. | 1833

Shaw C. J.

delivered the opinion of the Court. By the defendant’s receipt he has admitted that this property was attached as the property of another person, and has promised to return it. In an action to enforce the promise, he is precluded by such admission, from alleging property in himself by way of defence. The parties, as if doubtful whether the receipt was written in such form as to secure their mutual rights, stipulated, that if on application to certain counsellors named, it should not be found to be given in such form as the parties intended, it should be exchanged for one drawn in such form as they should think proper. But it is conceded that neither of the parties ever applied to either of the professional gentlemen named, for any alteration of the receipt, or gave notice that any alteration was desired. The question therefore must be decided on the contract as i„ stands. In regard to the construction of the contract, the Court are of opinion, that the paroi evidence was inadmissible, so far as it was intended or would have the effect to vary, alter or control the written contract, and to engraft a defeasance or condition, upon a contract absolute and unconditional.

It was contended that this promise was without considera tian, inasmuch as the goods receipted for were the defendant’s own property, and he could derive no advantage from becoming the bailee of his own property. But this argument cannot be sustained ; the attachment gave a lien and special property to the officer, with a right of possession, and the relinquishment of this right was a good consideration for such a promise. The defendant therefore is liable to this action.

But if the promise had been complied with, had the defendant delivered over the goods agreeably to his contract, he might then have brought his action of replevin, trespass or *43trover, to try his right of property. He would no longer be estopped by his contract and the implied admission contained in it, and upon proving title in himself, as he has proved it in the present action, he would have recovered the goods or their value. Johns v. Church, 12 Pick. 557. The receipter under such circumstances, although he may intend ultimately to assert his right of property, may well wait in the expectation that the attaching creditor will fail in his action, in which case the property will be delivered up, and all litigated questions of title avoided. It follows of course, that had it been delivered up, according to the defendant’s engagement, neither the plaintiff nor the creditor would have derived any benefit from it. Fuller v. Holden, 4 Mass. R. 498 ; Tyler v Ulmer, 12 Mass, R. 163; Learned v. Bryant, 13 Mass. R. 224.

The Court are therefore of opinion, that although the evidence offered by the defendant, of property in himself, did not constitute a defence to the action, yet it was admissible upon the question of damages, and tended to show that the plaintiff was entitled to nominal damages only. It was urged, that by thus lying by, the defendant encouraged the plaintiff to proceed in his original suit, and incur expense, in the belief that his judgment would be secured by the property attached, which he might not have done but for such belief. But precisely the same argument would apply in all cases, where a third person claims title to property attached. He is not bound to sue the officer immediately, but may, if he choose, postpone his suit till the goods are taken ‘n execution. Such delay will not affect the owner’s right to recover, nor his claim to damages.

Nor did the admission of this evidence on the assessment of damages, operate injuriously to the plaintiff, or the creditors whom he represents, by letting in the testimony of the debtor ; because the same evidence would have been competent in any action brought to try the question of property, either by the creditors against the officer for not applying the property to satisfy their debts, or by the present plaintiff against another receipter, or against the officer. In either of these cases the interest of the debtor would have been in the *44question, and not in the event of the cause. We are ol opinion, therefore, that the evidence was admissible upon the ' question of damages ; and it showing that the property could not have been applied to satisfy the creditor’s execution, the plaintiff can recover nominal damages only.