Collateral Loan Co. v. Sallinger

195 Mass. 135 | Mass. | 1907

Hammond, J.

This was a bill brought by a pawnbroker against Sallinger, the owner of property which without his authority had been pawned to the plaintiff by Cormier, the other defendant. Apparently several other suits which had been brought by other pawnbrokers, against the same defendants, were all referred with this to the same master. We have to deal simply with the suit brought by the Collateral Loan Company, and mention the existence of the other suits merely that certain statements in extracts hereinafter taken from the master’s report may be better understood. With this explanation we now proceed to the case before us.

1. The plaintiff contends that it acted, in good faith and that it has a lien upon the articles in controversy. But this position is untenable. Sallinger never entrusted to Cormier the general power to sell or pawn any of these articles. He simply authorized Cormier to sell them each to a particular person, and there was nothing in any' word or act of Sallinger, or in any previous dealing with the plaintiff, to indicate that Cormier was held out by Sallinger as having any other authority. Notwithstanding the acts of Cormier, therefore, the title to the goods remained in Sallinger and he is not estopped from maintaining his right.

2. It appeared that from time to time Cormier paid to Sallinger money which the latter credited upon some of the accounts ; and it is strenuously insisted by the plaintiff that Sallinger ought not to be allowed to retain the plaintiff’s money and also have the goods. As to this matter the master finds that after Sallinger had become aware of the frauds of Cormier the latter with his sister raised the sum of $245 by a mortgage upon their household furniture, and Cormier paid it to Sallinger’s bookkeeper, “ at the same time directing the bookkeeper to enter the sum so paid in various amounts, against the accounts corresponding to the various fictitious leases made by him. The bookkeeper carried out Cormier’s directions and the money paid in was credited by him upon said accounts. Sallinger subsequently knew all and acquiesced in the entries so made by his bookkeeper, but he did so merely because such entries were convenient as a matter of bookkeeping and because he did not care how the entries were made so long as he got the money. I [the master] find that there was never any agreement between said Sallinger and Cormier, or between said Sallinger and any other person, by which he ratified all or any part of the acts of said Cormier in making said pledges or any of them.”

The master further says : “ Concerning the allegations in the respective bills of complaint that Cormier used the identical money or the proceeds of the identical money received as loans, upon the articles enumerated in the respective bills of particulars, to make the payments to Sallinger called for by the various fictitious leases, or that if he did not use this identical money, yet he was enabled by the money which he received from the various plaintiffs by way of loans to make the payments to Sallinger called for by the various fictitious leases, and that in either view the plaintiffs are entitled as a matter in equity, to be repaid by Sallinger the amount advanced by them on the articles in question or the amount received by Sallinger from the money so advanced by the plaintiffs, before being called upon to give them up, I find the following facts :

“ Previous to his employment by Sallinger, Cormier had been a conductor on the Boston Elevated Railway. Shortly after his employment by Sallinger he went to live with his sister, Mrs. Le May in Boston, and continued to live with her until his arrest, sharing with her the expense of maintaining her household. Mrs. Le May was separated from her husband and earned what money she could towards her own support, by dressmaking and by taking boarders. From these sources I find that she realized between seventy-five and one hundred dollars a month. Cormier received wages at the rate of ten dollars a week when he first entered Sallinger’s employ. This was later raised to eighteen dollars a week and continued at that figure up to the time of his confession, after which no money was paid him by Sallinger. Neither Cormier nor Mrs. Le May had any other sources of income during the period of his employment by Sallinger except those above set forth, and it did not appear that either he or his sister owned any property, but during said period Cormier received the sum of twenty-five hundred dollars from a lawsuit and borrowed some money, — it did not appear how much.

“ I find that the money used by him to make payments called for by the terms of the various fictitious leases included money or the proceeds of money received as loans on articles covered by the fictitious leases and pawned as aforesaid, and that it also included money or the proceeds of money received by Cormier from Sallinger as wages, and money or the proceeds of money received by Cormier or by Mrs. Le May during the period in question from the various other sources above stated. I find that it is utterly impossible to now determine what proportion of the money paid Sallinger by Cormier on fictitious leases was money or the proceeds of money received in loans on articles pawned from the several plaintiffs.”

The legal title to the articles is in Sallinger. The plaintiff has no lien. It does not appear that any part of the money which the plaintiff paid Cormier ever went into Sallinger’s hands. Sallinger is not a gainer, but a loser, even if he retains all the money paid to him by Cormier and also recovers the articles. The plaintiff does not offer to assume the burdens of the fictitious leases and carry out such contracts in accordance with their terms. Under these circumstances there is no equity in its claim to be repaid any part of the money it paid to Cormier.

Decree affirmed.