317 Mass. 20 | Mass. | 1944
Although the declaration in this case does not properly set forth a cause of action for conversion, the case was tried as one for conversion and the Appellate Division dealt with it on that basis. Counsel in their briefs in this court have so treated it and we shall do likewise. Since the court in which the case was tried had jurisdiction of the subject matter of the dispute, defects in the pleadings may be treated as waived. Krinsky v. Stevens Coal Sales Co. Inc. 309 Mass. 528, 533.
The plaintiff contends that the defendant converted a check in the amount of $361.98. The District Court judge found facts which may be summarized as follows: The defendant was the president and treasurer of a corporation bearing his name (hereinafter called the corporation). The plaintiff ordered some pipe of the corporation for use in a W. P. A. project in New Bedford. The corporation did not manufacture the pipe but obtained it from the Still-water Pipe Company and this fact was known to the plaintiff. One of the terms of sale was that it would be paid for when the pipe was delivered in New Bedford. The plaintiff, learning that the corporation was in financial difficulties and in order to facilitate the obtaining of the pipe, agreed that it would pay for it when “placed upon any railroad siding.” After receiving some of the pipe the plaintiff sent a check for something in excess of $600 payable to the defendant to cover the entire order. The defendant kept the check for a week or ten days until he had reason to believe that some of the pipe was about to be shipped to the corporation by the Stillwater Pipe Company. He then indorsed and deposited it in the bank account of the corporation which thereafter used the proceeds in the ordinary course of its business. Part of the pipe was never delivered
The plaintiff filed six requests for rulings. The judge granted the fifth request and denied the others. The plaintiff contends that the requests that were denied should have been granted, and the correctness of the judge’s disposition of them raises the only .questions before us. The Appellate Division held that requests numbered 1, 2, 3 and 6 should have been granted and ordered that a finding be entered for the plaintiff.
Requests numbered 1, 2, 3 and 6, in effect, asked the trial judge to rule that the plaintiff was entitled to recover as matter of law. It is not necessary to consider whether these requests were within the provisions of Rule 27 of the District Courts (1940) requiring specifications if a party is to be entitled to review as matter of right. Since the Appellate Division reviewed the rulings they are properly before us on this appeal. Pacheco v. Medeiros, 292 Mass. 416, 419. Hoffman v. Chelsea, 315 Mass. 54, 55. We think that the trial judge was right in refusing to grant these requests. On the evidence a finding was warranted that at the time the check was deposited by the defendant the plaintiff had parted with its title to it and had no right to the possession of it or its proceeds. See Bacon v. George, 206 Mass. 566, 570; Judkins v. Tuller, 277 Mass. 247, 250; Handy v. C. I. T. Corp. 291 Mass. 157, 159; Massachusetts Lubricant Corp. v. Socony-Vacuum Oil Co. Inc. 305 Mass. 269, 271. If a finding for the defendant was permissible — and we think it was — these requests could not have been given. Milmore v. Landau, 307 Mass. 589, 590. Hoffman v. Chelsea, 315 Mass. 54. The fourth request likewise could not have been given. It called for a ruling that the defendant “improperly used or caused to be used the plaintiff’s check” as matter of law. The judge, in view of what we have said, was not obliged to find that this was so.
So ordered.
