197 Mass. 361 | Mass. | 1908
The jury were warranted in finding the following to be the facts in the matters on which there was a dispute in the case at bar.
The plaintiffs had forbidden the defendant Henderson to enter on the premises to take the property covered by the mortgage until he came with‘a writ of replevin. The defendant Henderson in removing the partition (assuming it to have been covered by the mortgage) negligently if not intentionally threw tea and coffee on the floor and trample,d on them, thereby rendering them of no value. Some of the property taken by the defendant was not covered by the mortgage.
1. The request that the plaintiffs be required to elect would seem to be an appeal to the discretion of the presiding judge and not the subject of an exception. See Carlton v. Pierce, 1 Allen, 26; Crafts v. Belden, 99 Mass. 535. But passing that by, the ruling of the judge was right. If the plaintiffs proved
2. The difficulty with the defendant’s third and fourth requests is that they assume that the defendant had a right to enter on the plaintiff’s premises and take the goods covered by the mortgage. The right to possession under the mortgage did not give the defendant a right to enter the close of the plaintiffs who were not the mortgagors. McLeod v. Jones, 105 Mass. 403. Bacon v. Hooker, 177 Mass. 335. The evidence was conflicting as to there having been a license in fact, express or implied.
The fourth request was given except so far as it assumed that the defendant had a right to enter.
3. The only other ruling refused was the eighth, and that has not been argued.
There is no merit in any of the exceptions, and the entry must be
JExceptions overruled, with double costs and twelve per cent interest.
