Kimball v. Hildreth

90 Mass. 167 | Mass. | 1864

Metcalf, J.

The contract of January 2d 1863, between the plaintiff and J. M. Hildreth, Jr., was a pledge of the watch and chain to Hildreth, with a power in him to sell them for a stipulated sum.

To render a pledge valid as a security, there must be not only a delivery to the pledgee of the property pledged, but also a continued possession thereof by him. If he relinquish possession, the pledge no longer exists, but is extinguished or waived. Story on Bailm. § 287. Eastman v. Avery, 23 Maine, 250. Russell v. Fillmore, 15 Verm. 135. Walcott v. Keith, 2 Fost. (N. H.) 209. Walker v. Staples, 5 Allen, 34, and authorities there cited.

It was admitted by the defendant, at the trial, that the watch and chain were delivered back by J. M. Hildreth, Jr. to the plaintiff. And there was evidence, which was not controverted, that the plaintiff wore the watch several weeks, and then lent it to the defendant. The pledgee, by delivering back the pledged property to the plaintiff, lost all his rights under the contract of pledge, according to the above cited authorities, and the plaintiff was thereby enabled legally to dispose of that property as if he had never pledged it. As he lent it to the defendant, who delivered it to his son, to whom it was formerly pledged, and refused to return it to the plaintiff on its being demanded of him, he made himself liable to this action, and the verdict was rightly returned against him.

The verdict being right, we need not decide whether the ruling and instructions under which it was found, and to which the defendant excepted, were or were not correct. 5 Mass. 10, 104, 7 Met. 275, 276. 8 Gray, 249. It is manifest from the answer filed by the defendant, and from the evidence introduced by the plaintiff, that the ground on which we uphold the verdict was not taken at the trial. Judgment on the verdict.