118 Mass. 409 | Mass. | 1875
The evidence would have warranted the jury in finding that the defendant sold the property and received the proceeds in pursuance of the authority contained in the letter from Freeman, the mortgagor, to the plaintiff. He had no right to sell it otherwise, because he had not foreclosed his mortgage. If he sold it by reason of that letter, shown to him by the plaintiff, the jury might find that he recognized and acquiesced in the plaintiff’s right to take the proceeds, subject to the payment of his own mortgage debt. The plaintiff, by virtue of that letter and his own mortgage, had a sufficient interest in and right to the proceeds to maintain the action; and the circumstances were sufficient to show privity between the plaintiff and defendant, and an implied promise to account for and pay over the proceeds of the property when sold. The direction to the jury to return a verdict for the defendant was therefore erroneous.
Exceptions sustained.
