297 Mass. 119 | Mass. | 1937
This is an action of tort for the conversion of an automobile, and is before this court on the appeal of the defendant from the final decision of the Appellate Division for the Northern District.
The trial judge found as follows: On May 21, 1935, the plaintiff lent $100 to Cyril E. Harper, secured by a chattel mortgage on an automobile belonging to Harper. In his application for the loan, dated May 19, 1935, Harper gave his residence as “Everett,” and his occupation as “meat cutter” employed by the First National Stores Inc., “Belmont,” for about one year. The mortgage was recorded with the city clerk’s office in Everett, on May 27, 1935. It was not recorded in Belmont. Harper was steadily employed as a meat cutter for the First National Stores Inc. in Belmont during the period from May, 1934, to November, 1935. He boarded part of the week in Belmont, paying $3 or $4 therefor. In his application for registration of the automobile in question, dated April 29, 1935, and in his application for a renewal of his operator’s license, dated August 1, 1935, Belmont was given as his residence. He hired a tenement in Everett, where his wife lived and where he lived when he was not in Belmont. Everett was the residential address he gave and Belmont his place of employment when he mortgaged the automobile.
On September 21, 1935, one Haag, a constable in the town of Belmont, attached Harper’s automobile “under a writ of contract” in which the defendant in the present case was plaintiff and Harper defendant. At the time the constable seized the automobile Harper told him that it
On September 23, 1935, Mr. Herbits instructed an attorney, one Hyman Addis, who worked with him, to send a written demand for the automobile. Mr. Addis did this by letters dated September 23, 1935, addressed to Percival J. Haag, constable, and Hyman J. Torf, attorney for Reid, Murdoch & Co., on the letterhead of Addis and Isenberg, counsellors at law. These letters were in duplicate except as to the name of the addressee, and were signed “Industrial Bankers of Malden Hyman Addis By his attorney.” Omitting the letterhead and signature each letter read: “Re: Reid, Murdoch & Co. vs. Cyril E. Harper Dear Sir: Please take notice that the Industrial Bankers of Malden is the mortgagor [sfe] named in a certain mortgage given by Cyril E. Harper of Everett, Mass., dated May 21, 1935, and recorded with the records of personal property mortgages City Clerk’s Office in the City of Everett, Book 96, Page 227. Said mortgage is in the sum of $100.00 on which there is a balance now due of $70.00 plus $1.75 interest. Said mortgage covers the 1931 Oldsmobile Sedan held under attachment by you in the above-entitled action. I hereby make demand upon you to release said attachment or pay forthwith the amount due the mortgagee on said mortgage. This notice and demand is given you in accordance with Chapter 223, Section 75, General Laws of the Commonwealth of Massachusetts. Whereof fail not or I shall hold you responsible for all damages resulting from your failure to comply with the provisions of the said
The report of the trial judge contains the following statement of fact and his rulings thereon: “It is the defendant’s contention that the mortgage was invalid because it should have been recorded in Belmont where the mortgagor resided and ‘principally transacts his business’ and also because the letter of the plaintiff denying the authority of Addis had invalidated Addis’s demand, which was the only proper demand ever made. The defendant also contends that damage in any event is not the value of the property at the time of conversion but the balance due on the note. I find that the mortgage was properly recorded. The . . .
The defendant seasonably presented twenty-five requests for rulings; many of them were requests for findings of fact which the judge was not obliged to give. Castano v. Leone, 278 Mass. 429. Others become immaterial to the issues now relied upon by the defendant, because of the special findings, above quoted, by the trial judge.
The request for a ruling that the words ''principally transacts his business” as stated in G. L. (Ter. Ed.) c. 255, § 1, include ''trade, calling, regular occupation, work and employment” was denied rightly. G. L. (Ter. Ed.) c. 255, § 1, provides in part as follows: ''Mortgages of personal property shall, within fifteen days from the date written in the mortgage, be recorded on the records of the town where the mortgagor resides when the mortgage is made, and on the records of the town where he then principally transacts his business.” The words “or follows his trade or calling” first appear in St. 1843, c. 72, § 2. This statute reads: “Every mortgage of personal property, whenever the mortgagor shall retain the possession thereof, shall be recorded as well by the clerk of the town where the mortgagor resides, as by the clerk of the town in which he principally transacts his business, or follows his trade or calling.” These words were retained intact in Gen. Sts. c. 151, § 1; in Pub. Sts. c. 192, § 1; in St. 1883, c. 73; in R. L. c. 198, § 1; and in St. 1915, c. 226, § 1; and were omitted in G. L. c. 255, § 1, in its revision of R. L. c. 198, § 1. See G. L. c. 284. St. 1921, c. 233, amended said c. 255, § 1, but did not change the provision thus amended: thus is plainly indicated a legislative intent to change R. L. c. 198,
It is plain that the demand signed by Mr. Addis on behalf of the plaintiff was sufficient in form and substance to satisfy the provision of G. L. (Ter. Ed.) c. 223, § 75.
It is contended by the defendant that the plaintiff is estopped, by reason of the conversation respecting the letter of September 23 with the defendant’s attorney, and by its letter to the attorney on September 24, to rely on the demand by Mr. Addis in order to maintain the action.' * “ The essential factors giving rise to an estoppel are ... (1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is- made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.”" Greenwood v. Martins Bank, Ltd. [1933] A. C. 51, 57, cited with approval in Cleaveland v. Malden Savings Bank, 291 Mass. 295, 297-298. No action was taken by the defendant relying on the letter of September 24, 1935, signed by the plaintiff’s manager. The attachment had then been made. If the defendant’s attorney was in doubt of the authority of Mr. Addis to sign the demand, that doubt should have been dissipated when Haag seized the automobile on execution on October 26, 1935, and sold it five days later, for on October 24, 1935, written authority for Mr. Herbits, the employer of Mr. Addis, to act for the plaintiff was furnished to Haag. It follows that there was no “act or omission” resulting from the letter referred to which could be said to have been detrimental to the defendant, and the trial judge found as a fact that Haag (the constable) “was not materially, nor for long, misled.”
Oral evidence was properly admitted to show the authority of Messrs. Herbits and Addis to act for the plaintiff. Shaw v. Nudd, 8 Pick. 9. Record v. Littlefield, 218 Mass.
The measure of damages in the instant case was the full value of the property at the time of the demand for the release and of the refusal to release. Hanly v. Davis, 166 Mass. 1, 2, 3.
Order dismissing report affirmed.
