114 Mass. 458 | Mass. | 1874
Judgment for a return with damages for the taking is ordered in an action of replevin, only “ if it appears upon the nonsuit of the plaintiff, or upon a trial or otherwise, that the defendant is entitled to a return of the goods.” Gen. Sts. c. 143, § 13. The question whether the defendants are entitled to have such a judgment, is to be determined by the state of the facts relating to the possession and right of possession at the time of the hearing upon the motion therefor. Simpson v. M’Farland, 18 Pick. 427. Whitwell v. Wells, 24 Pick. 25. Martin v. Bayley, 1 Allen, 381. Davis v. Harding, 3 Allen, 302. Leonard v. Whitney, 109 Mass. 265, 268.
The return upon the writ, if conclusive, settles only the fact that the property was, at that time, taken from the defendants and delivered to the plaintiff. A general verdict for the defendants, or a nonsuit, where both the taking and the title, or right of possession, are put in issue, determines only the right of the plaintiff to maintain the action. There being two issues, each sufficient to defeat the action, if found for the defendants, the verdict or nonsuit does not inform the court which issue is found or admitted.
The present case, however, does not raise the question whether, in such a posture of the proceedings, a return should be ordered or refused. The record of the suit in equity between these parties, in relation to the same property, is made part of this case. That suit established that the general ownership had passed from the defendants who now claim a return, but that they retained a lien for the unpaid purchase money, and a legal right of possession. They are entitled, therefore, to the possession, as against the plaintiff; and to a judgment for a return, if that is necessary to restore them to possession.
But upon the whole statement of the case we are satisfied that the defendants are substantially in possession already, by reason of transactions in regard to the property since the service of the
Although the plaintiff cannot now deny that the property was taken, and delivered to and received by its attorney, as appears by the return and receipt therefor upon the writ, yet the actual disposition of it may be proved for the purpose of showing the character and effect of' the subsequent dealings of the parties in relation to the possession and control of it. It appears that the iron remained, where it had been previously deposited by the direction of the defendants, in the custody of a warehouseman, and under the supervision of the defendant, Brastow, “ acting as United States storekeeper.” It is immaterial whether and how far their authority over it was affected by the fact that a part or the whole was outside of the “ bonded limits; ” or what control they may have had or exercised under any authority derived from the government of the United States. Both parties treated the custody as lawful, and one which neither could disregard. The defendants now moving for a return held the warehouse receipt, and also the permit, or order allowing the removal of the iron, which issued from the custom-house upon payment of the duties. It is unimportant whether that permit had expired, and whether the plaintiff might have removed the property by virtue of the replevin, without producing and surrendering the warehouse receipt and the permit or delivery order. Both parties regarded the matter otherwise; and acted upon the supposition that the possession of the receipt and permit so far controlled the possession of the property that the plaintiff could not remove it from the warehouse, and have actual possession and use of it, without the surrender of those papers.
On March 29,1873, Mr. Nettleton, as attorney for the plaintiff, acknowledged the receipt of the property from the officer who served the writ, and his keeper was thereupon discharged. The dues for storage to that time were paid, and arrangements made for removal of the iron. The warehouseman was ready to deliver to the plaintiff, but “ his relations to the United States required that the delivery order should first be surrendered.” The storekeeper refused to let the iron go until he should receive “the
It appears from the report that, at the time of the demand for the permit by the president of the plaintiff' corporation, May 12, 1873, he applied to Foote, one of the firm of Vibbard, Foote & Co., “ to consent that the iron should be removed ” “ to the Boston & Albany Railroad Company’s yards, to save storage, and this was declined. Foote claimed that he could export the iron. The president claimed that he could not. Foote testified that the reason why he declined the president’s proposition to have the iron removed to the Boston & Albany Railroad yards was because the plaintiffs then could get possession of it; and he meant to resort to all legal means in his power to prevent them from getting possession; that Vibbard, Foote & Co., or Jay Cooke & Co., never tried to get possession of the iron by presenting the custom-house permit and warehouse receipt themselves to Brastow and Prouty, but he (Foote) believed they could have obtained possession of it at any time by presenting those documents.”
The control over the property thus asserted and maintained by these defendants, and yielded to by the plaintiff, is substantially a defeat or termination of that momentary and constructive pas~ session with which the plaintiff was clothed by the service of the writ. Having been prevented, by these acts and refusals of the defendants, from taking full and actual possession of the property, and thus deprived of its use, the grounds for charging the plaintiff with “ damages for the taking by the replevin,” do not exist. An order for a return is not necessary to secure both the legal
In this view of the case it will be unnecessary to consider the special relations of Brastow and Prouty to the question of a return. All the defendants will have judgment for their costs. But the motion for an order of return is
Refused.
