Moore v. Fargo

112 Mass. 254 | Mass. | 1873

Colt, J.

The plaintiff, as attaching officer in a suit in which Langdon was plaintiff, took the defendant’s accountable receipt for property attached, and relinquished possession of it by Lang-don’s direction. After judgment and execution the receipt was delivered to Langdon, who gave it with the execution to another officer for service within the thirty days. Upon this state of facts the plaintiff was released from his personal liability for the attached property. The creditor had chosen to take the receipt as a substitute for the property, and was entitled as equitable assignee to the security which it afforded, with the right to pursue all legal remedies upon it in the plaintiff’s name. A demand on the plaintiff for the property attached, made by Langdon, or by the officer having the execution for service, would have been of no avail, and was not necessary to fix the defendant’s liability. If or was it necessary that the execution should be placed in the plaintiff’s hands for service, or that he should himself make demand on the defendant for the attached property. The receipt having been delivered to the officer having the execution, by one who had the entire equitable interest in it, there was implied authority given with it to make demand or do any other act necessary to hold the receiptor. The possession of the execution and the receipt must be deemed sufficient evidence of authority in a case where no question of authority was raised at the time; and the instructions upon these points were sufficiently favorable to the defendant. Lawrence v. Rice, 12 Met. 527. Heard v. Lodge, 20 Pick. 53, 60, 61. Mason v. Briggs, 16 Mass. 453.

The instructions given as to what was necessary to constitute a demand were correct. The jury must have found that the demand was made in such a manner as to be understood. If the authority to make it is not questioned at the time, it is sufficient that such authority in fact existed. Phelps v. Gilchrist, 28 N. H. 266. The demand, at the time and place when and where it was made, was a sufficient appointment of the time and place for the delivery of the property, within the meaning of the contract. If the reasonableness of the demand in this respect was not questioned at the time, and there was no offer then to comply at any other time or place, the objection cannot now be made. Miles v. Boyden, 3 Pick. 213. Heard v. Lodge, supra. Jewett v. Dockray, 34 Maine, 45. Cross v. Brown, 41 N. H. 283.

The point was made at the argument, that a demand made at the dwelling-house upon the defendant’s wife, while the defendant was at work on the farm upon which the house was situated, and temporarily absent from the house, was not a sufficient demand to charge the defendant with the value of the property named in the receipt. It was attempted to distinguish the case of Mason v. Briggs, supra, where it was held, in an action upon a receipt like the one in suit, that a demand made on the wife at the dwelling-house was sufficient when the husband then was and for some months had been out of the state. In the opinion of the court, it is not necessary to pass upon the question raised, because it is not fairly open to the defendant upon these exceptions. It appears to have been assumed on all sides at the trial that such a demand was sufficient if properly made. The defendant’s requests for instructions were framed in accordance with this view of the law. He insisted “ that if the officer who made the alleged demand at the defendant’s house was acting under the direction of the judgment creditor and not by the direction of Moore, or that if he failed to disclose to the defendant or to the defendant’s wife, on whom demand is said to have been made, the authority by which he made the demand, or under whose directions he made it, or failed to appoint a time and place for the delivery of the property according to the terms of the receipt, or failed in any manner to make himself understood by the defendant or by his wife, the demand would be ineffectual.” Upon all these points, as we have seen, the instructions given were sufficient. The judge was not asked to rule that a demand upon the wife, under the circumstances disclosed, if sufficiently formal and intelligible, would not be a good demand. If the defendant desired at the trial to raise this question, he should have distinctly presented it then, so that the plaintiff might have opportunity by proof of the actual agency of the wife, or her actual custody of the property, or by other proper evidence, if possible, to fortify his position and sustain the validity of the iemand. Exceptions overruled,.