Bailey v. Hervey

• Decision Date: 19 June 1883
• Citation: 135 Mass. 172
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James W. Bailey v. William H. Hervey & another

135 Mass. 172

James W. Bailey v. William H. Hervey & another

Supreme Court of Massachusetts

June 19, 1883

Suffolk. Tort, against William H. Hervey and Charles H. Pray copartners doing business under the firm name of William H Hervey & Company, for the conversion of certain personal property. The case was submitted to the Superior Court, and after judgment for the defendants, to this court, on appeal, upon an agreed statement of facts, in substance as follows:

On or about May 25, 1877, the plaintiff and the defendant Hervey, who was then doing business under the name of W. H. Hervey & Company, entered into a written contract, altered, added to and re-executed on September 10, 1878, which recited that the plaintiff had "hired and received" from said firm certain goods enumerated, for which he agreed to pay them certain sums of money as "rent" at stated times, and "the balance," at a certain rate per month, "until paid;" that, upon default in making such payments, his right to retain said goods should cease; and that no title to the property should vest in him until he had performed all the conditions of the agreement, upon the performance of which the title should so vest. The goods and chattels described in said contract were delivered to the plaintiff; and from the time of such delivery he continued to use the same until they were taken from him, as hereinafter stated. The plaintiff made sundry payments on account of said contract, amounting in the whole to $ 128, for each of which a receipt was given, acknowledging payment of the amount stated therein "on account of goods leased." After demands by Hervey for further payment, and neglect by the plaintiff to pay, Hervey brought an action on said contract against the plaintiff, by writ dated January 13, 1880, and made returnable to the following April term of the Superior Court for the county of Suffolk. In that action the Boston and Maine Railroad was summoned as trustee. The defendant Bailey did not enter an appearance, and was defaulted at the return term of the writ. At the following October term of said court, namely, on November 17, 1880, Hervey recovered judgment therein against the defendant, in the sum of $ 100.71, debt or damage, and $ 23.44, costs of suit, and execution issued on November 27, 1880; on which was received from the trustee by the attorneys of Hervey the sum of $ 5.07, of the fund attached in said suit, the receipt of which they acknowledged on the back of said execution, in part satisfaction thereof. The declaration in that action alleged the making of the contract, and its breach, and that the defendant owed the plaintiff $ 95.76, for "rent and interest," under the contract. Said judgment and execution remain wholly unsatisfied, except as to said $ 5.07.

On October 13, 1880, the defendants in this action, by their servants, acting or claiming to act by virtue of the contract, and under the license and power contained in the contract in case of the plaintiff's default as to payments to be made by him as provided in the contract entered the plaintiff's house and premises, and took all of the articles enumerated in the contract which they could find, and being the same mentioned in the plaintiff's...