Burns v. Lane

• Decision Date: 10 January 1885
• Citation: 138 Mass. 350
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Joseph J. Burns & another v. George Lane

138 Mass. 350

Joseph J. Burns & another v. George Lane

Supreme Judicial Court of Massachusetts

January 10, 1885

Argued November 5, 1884. [Syllabus Material] [Syllabus Material]

Essex.

Tort against a deputy sheriff, for the conversion of eight fish traps, and other personal property; with counts for official neglect and for deceit. Trial in the Superior Court, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:

There was evidence that the defendant was a deputy of the sheriff of Essex; that he had a writ in his hands issuing out of and returnable to the Supreme Judicial Court for said county, in due form of law, in which Julius W. Rosenstein and others were plaintiffs, and the plaintiffs in this case were defendants, by which he was required to attach the goods and estate of the defendants in that case to the amount of $ 20,000; that on November 8, 1881, he attached certain personal property by virtue of said writ in certain buildings on what was called "Fort Wharf" in Gloucester; and that said writ was duly returned to and entered in said court.

The plaintiffs' evidence tended to show that on said November 8 they had spread upon a field, called "Stage Fort Field," eight fish traps, for the purpose of drying them, they having been recently brought in for the season that this field was distant from Fort Wharf about two thirds of a mile, and was not visible from it; that these traps had been used one season, and consisted of twine netting and fittings of floats, sinkers, and ropes, and were liable to be destroyed by being frozen to the ground with ice and snow in the winter; that on said day the defendant told the plaintiffs that all of their personal property was attached, and thereupon the plaintiffs said to him that he should take care of those traps on the field, that they had a barn at Magnolia in which he could store them, and that the defendant said to them in reply that all of their property real and personal, including the barn at Magnolia and the fish traps, was attached, and if the plaintiffs meddled with them it would be at their peril; that on two occasions, within a few days after this, the plaintiffs asked the defendant to care for the traps, and told him they were of great value and of a perishable nature, and that they should be put under cover, and offered to do it themselves, and, on several occasions during the month, and before the traps were fully destroyed, the plaintiffs made the same statement and request to the defendant, to which the defendant replied, each time, that the traps were attached and all of the plaintiffs' property, real and personal, was attached, and that they would touch them at their peril; that these traps were destroyed by the ordinary effects of the weather, while lying on the field; that the plaintiffs, relying upon the statements of the defendant, and believing the traps to be attached by him, did nothing to them for that reason only.

These conversations all took place on Fort Wharf, or at other places in Gloucester as remote as that was from the field where the traps were spread, and none of them within sight of it.

The defendant, in testifying as a witness, denied that he made the statements attributed to him as to the fish traps, or that he knew anything of them or their existence; and there was no evidence, other than the declarations of the plaintiffs as before stated, that he ever saw them, or took possession of them, or had any keeper over them, or did anything to them or about them in the nature of making an attachment of them, and they were not mentioned in his return upon the writ against these plaintiffs.

The plaintiffs testified that Burns, one of the plaintiffs, resided within sight of the field where the traps were spread, and saw them a number of times; that a son and employee of the plaintiff Tarr crossed the same field almost every day, and frequently talked with his father about the traps; and that none of them ever saw the defendant or any one as keeper of the traps on the field, or in possession of them.

The defendant requested the judge to give the following instructions: "1. The plaintiffs are not entitled to recover anything of the defendant in this action for any loss or injury to the eight fish traps claimed by the plaintiffs to be on the lot called 'Stage Fort Field.' 2. Mere words will not constitute an attachment. Without an attachment, there was no obligation on the part of the defendant in relation to the property. 3. This is not a case where an action for deceit lies, for deceit can add nothing to, or take anything from, the rights of either party. The defendant is just as responsible for taking possession and not perfecting his title as he can possibly be made to be and whether he had attached the property or not is a question of law, and as well within the knowledge of the plaintiffs as of the defendant. To say that he attached, when the facts under the law make no attachment, cannot be said to deceive, for an action for deceit will not lie for a misrepresentation as to law. 4. It is not enough to show that the plaintiffs were deceived by the statement of the defendant, but it must be shown as matter of fact that the defendant intended to deceive them. 5. The plaintiffs are not entitled to recover for any loss of or injury to the eight fish traps, if the defendant did not in fact take possession of or intermeddle with them. 6. The estoppel cannot operate in the action for deceit to prove an attachment. If an attachment is not proved, then no consequences that follow an attachment can follow. 7. If the plaintiffs, by the exercise of common and ordinary care, would have discovered that there was no attachment, then the neglect to discover it and take care of the property was contributory negligence on their part, and will prevent them from recovering in this case. 8. The fish traps being all of the time in the possession of the plaintiffs upon their premises, upon land over which the defendant had no control, and did not attempt to exercise any control, the plaintiffs cannot justify their negligence and carelessness in regard to the property, and charge the defendant with the result of the same. Such conduct must at least be contributory negligence on the part of the plaintiffs, and prevent them from recovering. 9. The defendant could not make an attachment of the fish traps without actually reducing them to possession, and as they were in the possession of the plaintiffs, and that possession was not in fact disturbed by the defendant, the plaintiffs must be presumed to know that the property was not attached, and the defendant is not estopped by his alleged declarations to them, if they were made, that they were attached. 10. If the defendant is answerable as sheriff for want of care as sheriff, he is only bound to exercise reasonable care, and if, when exercising reasonable care, the property is injured or stolen, he is not answerable for its loss or injury. 11. If the defendant attached the property and failed to continue his attachment, or lost it by his own neglect, he became a trespasser ...