296 Mass. 531 | Mass. | 1937
This is an action of contract brought by Chin Loy, in the name of the Treasurer and Receiver General of the Commonwealth, under the provisions of G. L. (Ter. Ed.) c. 105, § 3, against the Tremont Storage Warehouse, Inc., a licensed public warehouse, as principal, and the American Surety Company as surety, on a warehouse bond dated August 13, 1925. A copy of this bond appears in the report.
The case was heard in the Municipal Court of the City of Boston. The defendants offered no evidence. At the close of the plaintiff's evidence and before final arguments the
The evidence reported to the Appellate Division warranted a finding that the machinery and fixtures described in the plaintiff’s declaration were the property of Chin Loy, the real plaintiff in the action; that Chin Loy had left them for free storage with one Joseph C. Harrington; that he had never relinquished or transferred his ownership of the same; that the fair market value on the day he demanded return thereof was $200; that by virtue of an execution in a proceeding of summary process against said Harrington, the articles described in the declaration, with goods of said Harrington, were removed by one Canner, a mover, acting on instructions of one Martin, a constable of the city of Boston; that “on or about” March 11, 1936, said described articles were deposited in the name of Joseph C. Harrington in the warehouse of the defendant Tremont Storage Warehouse, Inc., and a usual warehouse receipt was issued to Joseph C. Harrington; that on March 11, 1936, the said machinery and fixtures, then in the possession of the Tremont Storage Warehouse, Inc., were attached by virtue of a trustee writ issued out of the Municipal Court of the City
The Tremont Storage Warehouse, Inc., as trustee, answered that at the time of the service of the trustee writ upon it, it had in its hands and possession goods and effects of said Joseph C. Harrington, subject to its claim for storage and other charges amounting to $175.
It is to be noted that the report contains no evidence, or offer of evidence, that Chin Loy ever asked the Tremont Storage Warehouse, Inc., whether it claimed a lien on the
To maintain this action, or an action of conversion, against the warehouseman it was necessary for the plaintiff to prove a tender of the amount of the warehouse charges and that the warehouseman was given a reasonable time to ascertain the validity of the plaintiff’s claim. Here Chin Loy failed to make a tender of reasonable charges for storage when the demand for release of the articles described in the declaration was made or at any later time, and there is no evidence in the report to warrant a finding that he was then, or at any time, ready, willing and able to do so. Brown v. Davis, 138 Mass. 458. There is no evidence in the report to warrant a finding that he ever inquired about the amount of the possible storage charges,
The rulings requested by the defendants, though entitled a “motion,” were in fact rulings since they were predicated upon the law and evidence.
The order of the Appellate Division directing that judgment be entered for the defendants is
Affirmed.