131 Mass. 333 | Mass. | 1881
This is an action of tort in the nature of tro-
ver. It appeared at the trial that one Smith, who kept a country store, mortgaged certain goods to the plaintiff; that Smith after-wards went into insolvency; and that the defendants, being duly appointed his assignees, took possession of and sold the goods. At the trial, a report of an auditor, to whom the case had been referred, was put in evidence. The plaintiff then offered evidence of the value of the goods named in his writ, and the defendants objected to it, because the plaintiff had not put in any evidence of their value before the auditor. The court rightly admitted the evidence. An auditor’s report is only prima facie evidence, and a party has the right to re-try before the jury the whole case, and to introduce any competent evidence which is material to the issues involved. The court might, if it had seen fit, have recommitted the case to the auditor, but it could not deprive the plaintiff of his right to a trial by jury, or of the right involved in it of introducing all competent evidence bearing upon his case.
In order to show what goods were in the store and their value, the plaintiff called two witnesses, admitted to be qualified to
The third exception of the defendants was to the refusal of the court to rule that the plaintiffs’ mortgage was void because it contained a power to the mortgagor to sell the goods in the regular course of his trade. This is not now an open question in this Commonwealth, it having been repeatedly held that such a power given to the mortgagor does not per se avoid the mortgage, but is at most only evidence of a fraudulent purpose,
The court “ ruled and instructed the jury that, if they found that the articles named in the schedule annexed to the writ were in the store of said Smith which was named in the mortgage, and were his property at the time the mortgage was made, and were such as were usually kept in stores similar to that of Smith, as said store had been described to them, they might find that every such article was included in the description of the mortgaged property, in said mortgage and in the terms thereof; ” and the only remaining question is as to the correctness of this ruling. The mortgage conveys “all the following goods and chattels, namely, all flour, all teas, soaps, sugars, spices and all groceries, all fixtures belonging to me now situated in the store occupied by me in Robinson’s block in said Lexington, upon Main Street, including all grain.”
It may be necessary to resort to parol evidence to apply the description and to show what articles in Smith’s store were included within it. But parol evidence cannot enlarge the description and bring within the operation of the mortgage articles not fairly included within it. By the instruction given them, the jury were permitted to include in the mortgage under the general description of “ groceries ” any articles such as were usually kept in a store like that of Smith, which was a “country and village grocery store.” This is not the true test. Many articles may be usually kept in a country and village grocery store which are not groceries, or otherwise within the description of this mortgage. Many of the articles which were in Smith’s store and which are specified in the plaintiff’s declaration are of this description, such as shovels, snathes, pails, baskets, traps, cards and others. The fact that such articles are usually kept in a country store does not make them “ groceries ” within the meaning of this mortgage, or extend the natural and accepted meaning of the description so as to include them.
We are therefore of opinion that this ruling was erroneous. But, as there has been a full and fair trial upon the question of the liability of the defendants, and as this erroneous ruling affects only the amount of damages, we are of opinion that the