Drury v. Moors

| Mass. | May 20, 1898

Holmes, J.

This is an action by assignees in insolvency to recover the value of certain goods converted by the defendants to their own use. The goods in question were mortgaged or pledged to the defendants by one Houdlette, in the manner and course of dealing described in Moors v. Reading, 167 Mass. 322" court="Mass." date_filed="1897-01-08" href="https://app.midpage.ai/document/moors-v-reading-6425807?utm_source=webapp" opinion_id="6425807">167 Mass. 322, and the question here, as there, is whether the mortgaged property was delivered to and retained by Moors. St. 1883, c. 73, § 2.

It is argued that this case may be distinguished from the former one, because there the goods were only a part of the goods in Houdlette’s warehouse, and were mingled with Houdlette’s own through Moors’s neglect or permission, and also because they formed a principal part of Houdlette’s stock in trade, etc., whereas in the case at bar the iron was in a yard where heavy goods were kept under lock and key, and sufficiently identified. The yard was at some distance from the warehouse, and was separated from it by streets and buildings. But in our opinion, if there are differences between this case and the former one, they are unfavorable to the defendants. It is questionable whether there is any evidence of delivery, which seems to have been proved in the former case; see Moors v. Reading, 167 Mass. 322" court="Mass." date_filed="1897-01-08" href="https://app.midpage.ai/document/moors-v-reading-6425807?utm_source=webapp" opinion_id="6425807">167 Mass. 322, 324, and Parry v. Libbey, 166 Mass. 112" court="Mass." date_filed="1896-05-21" href="https://app.midpage.ai/document/parry-v-libbey-6425621?utm_source=webapp" opinion_id="6425621">166 Mass. 112; and whereas it might have been argued in the former case that the large liberty allowed Houdlette in the way of selling the mortgaged goods, the mixture with Houdlette’s own and the influx and efflux to and from the mortgaged stock were only evidence warranting a finding that Moors did not retain possession rather than indicia requiring a ruling, as matter of law, that he did not, here there are the additional facts that the goods were under lock and key in Houdlette’s private enclosure, and that the,only key known so far as appears was in Houdlette’s possession. The testimony is that the key was kept in Houdlette’s office, over the desk of Garrett, the bookkeeper, whom Moors had made his agent to keep possession of the property, but it nowhere is suggested that he held this key adversely to Houdlette, or that he had any such relation to it that he could have sued for it if it had been carried off. The essential facts relied on in the former decision were true in the present case, and in addition there was a present exclusive control of the goods by Houdlette.

Judgment on the verdict.