171 F. 297 | D.R.I. | 1909
Upon the facts found by the referee, I am of the opinion that possession of the mortgaged personal property was delivered to and retained by the mortgagee Terlcel.
A key of the storeroom containing the goods was delivered to the mortgagee, who visited the storeroom, examined the goods, and after-wards retained the key. Under the circumstances he was not required to inquire if the mortgagor retained another key, but was entitled to assume that the key given to him for the express purpose of giving him possession of the goods did in fact give him a possession which was exclusive. The mere fact that the mortgagor retained another key, without evidence that he ever visited the storeroom or exercised any control of the goods after delivery of the key to the mortgagee, is insufficient to show that the mortgagee had knowledge of the existence of a second key, or that he consented to a joint possession of the goods.
There was apparently some conflict in the testimony as to whether there was in fact more than one key; but the referee has expressly found that Terkel received from Cole a key to the storeroom, and bases his opinion that there was not a sufficient taking and retaining of possession upon the ground that such possession was as much retained by the mortgagor as the mortgagee, because, each retained a key to the storeroom. I see no reason for disturbing the referee’s finding of fact that each retained a key to the storeroom. Under the circumstances, however, the mere retaining of a second key by the mortgagor is insufficient to show that the mortgagee’s possession was not exclusive.
The decision of the referee disallowing.the claim is overruled, and the claim is allowed.
