137 Mass. 207 | Mass. | 1884
1. In order to prove that the sale to him was valid as against his seller’s creditors, the plaintiff was entitled to show that the goods were in „his possession before the attachment by the defendants, and, to that end, that the place in which they were kept was hired by him. Having shown that he hired the place before the attachment, it was competent for him to show that he paid rent afterward, in pursuance of his contract; and, although the receipt was not competent evidence of such a payment, Giles v. Wood, 3 Dane Abr. 409, yet the payment having been testified to directly, giving the receipt was one of the attending circumstances the admission of which, although the evidence was immaterial, does not seem to us sufficient ground for a new trial. Hosmer v. Moseley, 11 Cush. 211.
2. The evidence of the officer, that he was instructed by the attorney of the other defendants to attach the goods as he did, was admissible, and of itself evidence of a conversion by them. This instruction was not a privileged communication, but an act affecting third persons, and within the scope of the attorney’s authority. It therefore was the act of the defendants as well. See Newberry v. Lee, 3 Hill (N. Y.) 523; Parsons v. Loyd,
3. Evidence of the market value of the wagon four months before was not too remote. The jury could make allowances, if any were necessary.
The other exceptions are not pressed, and seem to be waived. Where there is a joint conversion like this, the plaintiff has his election to sue all or some of the tortfeasors jointly; Mitchell v. Tarbutt, 5 T. R. 649; 1 Wms. Saund. 291, n. 4; 1 Chit. Pl. (7th ed. by Greening) 97; and, at the same time, may maintain another action against one of them separately. Elliott v. Hayden, 104 Mass. 180.
An offer to sell the property to some one else, made by the plaintiff’s vendor after the sale, and without the plaintiff’s knowledge, would not have warranted a finding that the sale was fraudulent. Lincoln v. Wilbur, 125 Mass. 249.
Exceptions overruled.
