250 Mass. 278 | Mass. | 1924
This is an action of replevin. The plaintiffs assert ownership and right to possession of an automobile chassis by virtue of a chattel mortgage given to them by one Hurum of New York City and recorded in the appropriate registry office of that city. It was conceded that possession was in the defendant, who was entitled to a lien on the chassis for work rightly done on it. The defendant therefore took no further part in the trial. One Allen intervened as claimant. The trial proceeded between him and the plaintiff.
It was also conceded that the chattel mortgage upon which the plaintiffs’ case in part rests was duly executed, delivered and recorded, all in accordance with the laws of the State of New York, that demand was made by the plaintiffs for breach of the conditions of the mortgage, and that payment was refused. These facts alone constitute no evidence of title or possession in the plaintiffs. Gibbs v. Childs, 143 Mass. 103.
There was uncontradicted evidence tending to show these facts. The mortgage was dated on May 2,1921. It covered
Under date of May 6, 1921, Hurum and Allen entered into an agreement in writing with respect to a business arrangement between the two touching the sale of automobiles, wherein amongst other matters Hurum agreed to deliver forthwith a chassis to Allen to be paid for by the latter out of commissions to be earned by him. Acknowledgment of a substantial sum credited on account of this purchase by
The case was tried before a judge of the Superior Court without a jury. He made findings of fact to the effect that the plaintiffs “ did not have a valid mortgage upon the property mentioned in the writ and had no right to the possession of said property, at the time of the beginning of the action and have not since,” and that “ the claimant was the lawful owner of said property and as against the said plaintiffs had the right to the possession thereof.”
The claimant presented several requests for rulings. These do not appear to have been passed upon by the judge. Since the claimant prevailed below, he has no further concern with these requests; and the plaintiffs could not and did not except to them because they were not granted. They are not before us. The case is reported on two issues together with certain exceptions raised at the trial. The latter have not been argued and therefore are to be treated as waived.
The finding of facts made by the judge and his general finding in favor of Allen must stand as final provided there is any evidence to support them and provided as matter of law they were reasonably possible on the evidence. Moss v. Old Colony Trust Co. 246 Mass. 139, 143.
All these transactions took place in the city and State of New York. There was no evidence as to the law of that State. Hence the rights of the parties must be determined by the common law of this Commonwealth. Hazen v. Mathews, 184 Mass. 388, 391. Park & Pollard Co. v. Agricultural Ins. Co. 238 Mass. 187, 192.
The first issue reported is “ Whether or not there was a mortgageable title in Hurum at the time the mortgage was given.” This issue means whether as matter of law the finding of the judge, to the effect that the plaintiffs “ did not have a valid mortgage upon the property ” in question, can be supported as matter of law.
There was no evidence requiring the inference that the mortgage and trust receipt were contemporaneous or parts of the same transaction. The parties were different. The dates are different. Although the deposition of Hurum was introduced in evidence, there is nothing in the record on this point.
It does not” appear that the plaintiffs ever took possession of the property in question under their mortgage before the rights of the claimant Allen intervened. See Coggan v. Ward, 215 Mass. 13.
It is open to doubt on this record whether Hurum had any interest under the trust receipt and the advice of draft and guarantee, which he could mortgage or which was compatible with the mortgage here in litigation. That is in substance the second issue reported; but it becomes unnecessary to consider it, because, for reasons already stated, the plaintiffs fail to show title in themselves.
All the parties in interest are before the court. No question as to practice or procedure has been raised. Whether the facts bring the case within the provisions of either § 40 or § 41 of G. L. c. 231, has not been considered. This is one of the cases where, since the plaintiffs cannot prevail and 'the disposition would be the same in any event, there seems to be no objection to stating the grounds of substantive law requiring that result. Browne v. Turner, 176 Mass. 9, 12. Commonwealth v. McNary, 246 Mass. 46, 48, and cases there collected. Diaz v. Patterson, 263 U. S. 399, 402.
The “ Finding and Order ” of the Superior Court is right and judgment is to be entered in accordance therewith.
So ordered.