Boston Supply Co. v. Rubin

• Decision Date: 11 March 1913
• Citation: 101 N.E. 133,214 Mass. 217
• Parties: BOSTON SUPPLY CO. v. RUBIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 217

101 N.E. 133

BOSTON SUPPLY CO. v. RUBIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 11, 1913

COUNSEL

Wm Hirsh, of Boston, for plaintiff.

E. N Hill, Julius Nelson, and W. J. Mayers, all of Boston, for defendants.

OPINION

BRALEY J.

The exceptions state that the pleadings may be referred to and the answer consists only of a general denial under which the defense raised by the various requests would not be open. But no allusion to the pleadings having been made at the trial or at the argument, the questions raised by the record are to be treated as properly before us. Ridenour v. H. C. Dexter Chair Co., 209 Mass. 70, 78, 95 N.E. 409. The title to the watch and ring for the conversion of which the action is brought was in the plaintiff when pledged to the defendants by one Marion E. Davis as security for the payment of her own debt. It is contended under the second and third requests that she had been intrusted with the sale of the property within the meaning of R. L. c. 68, commonly known as the 'factor's act,' and that the plaintiff cannot maintain the action as no tender has been made of the amount advanced. Assuming that in receiving and retaining the pledge, upon which they claim a valid lien, the defendants acted in good faith, but of which they offered no evidence, the judge was warranted in finding that, although in the employment of the company, watches and rings were taken by her only to be exhibited or delivered to prospective customers whom she reported had been interviewed or secured. If a sale followed either a conditional bill of sale, where payment was to be made by installments, or the proceeds were returned to the plaintiff. The judge made no specific findings of fact, but the general finding for the plaintiff is a finding that in so far as the issue was one of fact Davis had not been authorized to sell as she chose to whomsoever would buy, but to sell only to such persons as she represented to the plaintiff could be induced to pruchase upon inspection of the merchandise. No general authority having been conferred, the statute is inapplicable, and the case at bar falls within H. A. Prentice Co. v. Page, 164 Mass. 276, 41 N.E. 279, and not within Cairns v Page, 165 Mass. 552, 43 N.E. 503, on which the defendants rely.

The bill of sale or lease returned for the watch and ring was fictitious, and upon discovery of the fraud the plaintiff settled with its employé and executed a release, although not under seal, of any and all claims against her. The defendants by the fourth, fifth, sixth, seventh and eighth requests asked the court to rule that the claim against them had been thereby discharged, and that as Davis and themselves were successive tortfeasors the release of one released all. The appropriation of the plaintiff's chattels by Davis was felonious under R. L. c. 208, § 26, and while the outcome of the acts of Davis and the assertion of a lien by the defendants has deprived the plaintiff of its property, yet the wrong did not result from their concerted action, as the defendants are not shown to have known at the time of the pledge that the watch and ring had been stolen. Chamberlain v. Shaw, 18 Pick. 278, 284, 29 Am. Dec 586; Strickland v. Barrett, 20 Pick. 415, 417; Feneff v. B. & M. R. R., 196 Mass. 575, 82 N.E. 705. It is obvious that the plaintiff could have maintained an action against Davis for all losses sustained; but if the defendants at any time before demand by the plaintiff had returned the pledge to her, they would...