322 Mass. 472 | Mass. | 1948
This is an action of tort brought in the Municipal Court of the City of Boston for the conversion of four thousand six hundred ninety-five and one half yards of rayon linings. The plaintiff is Manhattan Clothing Co. Inc., formerly, before change of name, Goldberg & Rich Co. Inc., a corporation engaged in the manufacture of men’s coats at 101 Albany Street, Boston. The defendants are Sidney M. Goldberg, formerly president of the corporation, and Josephine Paronich, its bookkeeper. There was a find
The report states the evidence to be substantially as follows. In October, 1945, as a result of an application made in its behalf by Goldberg, the corporation received from the war production board a limited priority authorizing it to purchase eleven thousand two hundred twenty-five yards of rayon linings from three specified manufacturers. Under this authorization the corporation ordered five thousand yards of finings from William Skinner & Sons of New York city (hereinafter called Skinner), one of the three named manufacturers. The order was numbered 8,281 and referred to “By Ex” (Railway Express) as the carrier for shipment. Rayon finings in accordance with the colors, matching samples and quantity of finings so ordered to the amount of four thousand six hundred ninety-five and one half yards were shipped “via Railway Express” by Skinner from New York under dates of November 20, 21, 23, and December 4, 28 and 29. The invoices covering these shipments were addressed to Sidney M. Goldberg & Co., 101 Albany Street, or to Sidney M. Goldberg, 101 Albany Street, and referred to order number 8,281. Deliveries of the three November shipments were first made at the place of business of the plaintiff, 101 Albany Street, and at the request of Goldberg were redirected by Paronich to 72 Harrison Avenue. The three December shipments were originally delivered at 72 Harrison Avenue. During the fall of 1945 Goldberg had been engaged in some work on his own account at this latter address. He had been planning to leave the plaintiff in order to start in business for himself, and did leave on January 4, 1946, when a new corporation, Sidney M. Goldberg Co., organized by him was chartered. All of the finings in the November and December shipments were taken by Goldberg for his personal use or came under his control. He paid Skinner $1,480.10 for them with his personal checks. The plaintiff, except through the knowl
Certain requests for rulings of law were filed by the defendant Goldberg. Requests 1 and 3 asking the judge to rule that as matter of law the finding should be for the defendant Goldberg and that there was not sufficient evidence to justify a finding for the plaintiff were denied. Request 4 asked a ruling that there was no evidence of acceptance or receipt by the plaintiff of the goods in question. The judge ruled “there is evidence of a legal acceptance.” Requests 6 and 7 asking rulings that there was not such allocation of the goods to the plaintiff’s order as would give the plaintiff title or right to possession were denied. Request 10 read, “In the absence of a tortious taking by the defendant, an action for conversion cannot be maintained without proof of a demand by the plaintiff for the return of the goods allegedly converted and a refusal to do so by the defendant.” The judge found “there was a tortious taking.” Request 11 sought a ruling that there was no exercise of dominion by the defendant over the goods. This was denied. Finally, request 17 asking that the damages be limited to the fair market value of the goods was denied.
Ordinarily, when an order is given for goods to be shipped by carrier, it is presumed as a fact that the parties, both buyer and seller, intend that title to the goods shall pass when the seller allocates the goods to the order and delivers them to the carrier at the place of shipment. Fechteler v. Whittemore, 205 Mass. 6. Barrie v. Quinby, 206 Mass. 259. Twitchell-Champlin Co. v. Radovsky, 207 Mass. 72, 75. John B. Frey Co. Inc. v. S. Silk, Inc. 245 Mass. 534. Daniel
As to the requested ruling on the measure of damages, it is true that for a conversion the plaintiff ordinarily is entitled to recover the fair and reasonable market value of the property with interest from the time of conversion. Jackson v. Innes, 231 Mass. 558. Koski v. Haskins, 236
Order dismissing report affirmed.