272 Mass. 334 | Mass. | 1930
This is an action of tort in which the
The plaintiff also recovered damages on the fifth count for conversion alleging that a constable seized, under color of authority of a writ in an action of contract brought by the defendant against the plaintiff, certain household goods and other personal property of the plaintiff not exempt from attachment, and placed them in storage in a room owned and controlled by the defendant; that after trial that action went to final judgment in favor of the present plaintiff in July, 1922, and that thereupon the attachment was dissolved, and the plaintiff became entitled to the possession of her property; that thereafter demand was made of the constable and o'f the defendant for the return of the property attached, which was still in storage in the defendant’s building in compliance with his directions, but this demand was not complied with. When the goods were placed in storage the officer caused the door of the room in which they were placed to be locked and retained the key in his possession.
The defendant now makes two contentions; the first is that the bringing of a former action by the plaintiff and recovery and enforcement of judgment therein constitute a bar to recovery of judgment for conversion in this action; and his second is that, if there was property of the plaintiff which might be converted by the defendant after the termination of the attachment, the evidence would not justify a finding that he converted it.
The former action by the plaintiff, to which reference has been made, was brought against the defendant immediately after he had caused to be attached the personal property of the plaintiff, including the property which by law was exempt from attachment. The plaintiff in her former action sought recovery in one count of the declaration for the alleged conversion of certain personal property. The
It is a general rule that “a judgment on its merits in a former action between the same parties is a bar, as to every issue which in. fact was or in law might have been litigated, to later action upon the same cause.” Cote v. New England Navigation Co. 213 Mass. 177, 180. See also Trask v. Hartford & New Haven Railroad, 2 Allen, 331; Goodrich v. Yale, 97 Mass. 15; Stevens v. Pierce, 151 Mass. 207; Fitzgerald v. Heady, 225 Mass. 75; Canning v. Shippee, 246 Mass. 338. It is also an established rule that an action for the conversion of chattels will bar a subsequent action for the conversion of other chattels taken by the same act. Folsom v. Clemence, 119 Mass. 473. McCaffrey v. Carter, 125 Mass. 330. Sullivan v. Baxter, 150 Mass. 261. But these principles are not applicable to the facts of the present case. When the former action was brought the only part of the attachment which in that action could be found to be wrongful related to the property for the conversion of which the plaintiff was there permitted to recover. G. L. c. 223, § 42; c. 235, § 34. Magaw v. Beals, 242 Mags. 321, 325. Under the writ in the original action brought by the defendant attachment of property liable to be taken on execution was authorized and the attachment made would remain valid until final judgment for the defendant in the case, unless reduced or dissolved in the manner provided by law or its invalidity were otherwise established.
In his request for ruling numbered four and one half the defendant asked the judge upon all the evidence to direct the jury to return a verdict for the defendant on the fifth count. He also in his twenty-sixth request asked the judge to rule that if he as one of the three trustees controlled the building in which the plaintiff’s goods were stored, but the goods were in a locked room in the custody of a constable, neglect or refusal by the defendant to return the goods after final judgment for the then defendant in the action on which the attachment was made did not constitute a conversion. The judge in his charge did not in terms refer to this request, but instructed the jury in substance that the plaintiff’s right of action depended upon proof of a demand upon the defendant for the property and a refusal to deliver it after the action was terminated, and also upon proof that the defendant exercised control over the property inconsistent with the right of the owner and by excluding her from the possession or depriving her of it. The contention of the defendant in regard to this request is that the original attachment was the only wrongful act and that the demand.was superfluous and of no significance; and that if the demand was essential to the plaintiff’s case the refusal of the constable was his own, and the demand on Beals was not accompanied with knowl
So far as the evidence discloses the property continued to be in the custody and possession of the constable, notwithstanding the fact that the defendant was in control of the building. Arthur McArthur Co. v. Beals, supra. The plaintiff has failed to prove that the defendant had at any time been in possession of the property or that he could comply with the demand when made.
The trial judge erred in refusing to give the defendant’s twenty-sixth request for ruling, and in not directing a verdict for the defendant on the fifth count. The judge having so erred, judgment for the defendant is to be entered on count five. No error appears in the rulings on counts two and four and judgment is to be entered on the verdict for the plaintiff on those counts in the sum of $250.
So ordered.