Benjamin N. Moore & Sons Co. v. Manufacturers' Nat. Bank of Lynn

• Decision Date: 23 November 1927
• Citation: 261 Mass. 328,158 N.E. 755
• Parties: BENJAMIN N. MOORE & SONS CO. v. MANUFACTURERS' NAT. BANK OF LYNN. MOORE v. COLBURN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 328

158 N.E. 755

BENJAMIN N. MOORE & SONS CO.

v.MANUFACTURERS' NAT. BANK OF LYNN.

MOORE

v.COLBURN.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 23, 1927.

Exceptions from Superior Court, Essex County; Quinn, Judge.

Action of tort by the Benjamin N. Moore & Sons Company against the Manufacturers' National Bank of Lynn, and action of tort by Frederick N. Moore against Clifton Colburn, to recover for alleged negligence in failure to preserve leather pledged. Verdict for defendant in each case was directed, and plaintiffs except. Exceptions in first case sustained; exceptions in second case overruled, nunc pro tunc, as of day after their allowance.

J. J. Ronan, of Salem (Richard E. Blake, of Salem, on the brief), for plaintiffs.

W. Hirsh, of Boston, for defendants.

PIERCE, J.

These two actions sounding in tort were tried together in the superior court. Since the trial the defendant in the second action has died, and the plaintiff concedes that this action abates, there being neither allegation nor proof of special damages.

Counts one and two of the declaration in the first action in substance allege that the defendant willfully and in bad faith, and without good faith and the exercise of reasonable diligence, neglected and omitted to sell and dispose of certain leather, which the plaintiff had pledged with the defendant as collateral security for a loan of $50,000, although, after the defendant had demanded the payment of the loan, the plaintiff had repeatedly brought to its attention that the leather could be sold at such a price as to compensate the defendant for the loan and leave a substantial balance to the plaintiff; that the defendant, in violation of its duty to the plaintiff, ultimately sold the leather at a grossly inadequate price, whereby the plaintiff suffered the damages as alleged in the writ. Count three alleges in substance that the defendant negligently failed to preserve or protect the leather, allowed it to deteriorate, and thereby prevented a sale of it at such a price as would liquidate the loan and allow a substantial surplus for the plaintiff. Count four alleges ‘that the defendant converted to its own use a certain large quantity of leather, of great value, the property of the plaintiff.’ All the material evidence is contained in the bill of exceptions. At the close of the evidence the judge directed a verdict for the defendant in each case, and the only question now open in this court is whether the judge erred in directing a verdict in the first action.

The plaintiff does not argue orally or in its brief in support of the allegations in its declaration that the defendant neglected to sell the leather pledged as collateral for the notes of the plaintiff, after the defendant had demanded payment of the notes. Indeed the evidence in its aspect most favorable to that contention does not warrant a finding that the plaintiff wished, much less requested, that a sale be had.

The brief of the plaintiff is addressed to the support of the allegations contained in the third count of its declaration, wherein it is alleged that the ‘defendants in violation of this duty negligently and in bad faith took no steps to preserve or protect said leather, but allowed said leather to be so handled so as markedly deteriorate * * * to the great damage to the plaintiff.’ The evidence in support of this allegation, and pertinent to that issue, is as follows: The defendant lent the plaintiff $50,000 on two notes in November, 1919. The plaintiff pledged, as collateral security for the loan,...