Cohen v. Longarini
| Decision Date | 06 January 1911 |
| Citation | 93 N.E. 702,207 Mass. 556 |
| Parties | COHEN v. LONGARINI. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm Charak, for plaintiff.
W. M Blatt, for defendant.
This is an action for the conversion of certain property alleged to belong to the plaintiff. At the close of the evidence the plaintiff asked the court to rule that he was entitled to recover. His exception to the refusal to grant this prayer presents the only question to be determined. A brief answer to the plaintiff's contention is that the bill of exceptions does not purport to report all the material evidence. Hence it does not appear that any harm has been done to him or any error committed. But as neither party has argued this point, we consider the case in another aspect.
It was not disputed that on August 26, 1908, the plaintiff purchased from one who had been his partner the latter's interest in a shoe store, which the two had before conducted as copartners. The plaintiff testified that on the day following he made an agreement of conditional sale of this store and all its stock with one Siegel, the price being $3,439, of which the receipt of $1,000 was acknowledged, the title to remain in the plaintiff until payment was made, and that contemporaneously he executed an absolute bill of sale to Siegel, and placed it in escrow to be delivered when full payment had been made; that thereupon Siegel entered into possession of the store and conducted the business, having the right to make sales in the ordinary course of trade; that in February, 1909, for breach of the agreement he took possession of the store and employed Siegel as his agent to run the store thereafter; that except at rare intervals after the conditional sale the plaintiff was not at the store, and Siegel was apparently in sole control; and that on March 4 1909, the defendant attached goods in the store as the property of Siegel. Several witnesses testified to seeing the plaintiff take possession of the store in February, and the agreements and bill of sale were offered in evidence. The plaintiff made a perfect case on paper. But the defendant claimed it was a fraud, and that the goods attached were in truth the property of Siegel. The question at issue was, not as ciaimed by the plaintiff whether the goods were liable to attachment, but whether the defendant had converted goods which were the property of the plaintiff The plaintiff alleged that he was the owner The burden was on him to prove that fact. It was an affirmative pr...
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...he did not own the property and had no right to possession. He then had no valid cause of action against the defendant. Cohen v. Longarini, 207 Mass. 556, 93 N. E. 702. See Phelps v. Palmer, 15 Gray, 499, 77 Am. Dec. 378;De Nuccio v. Caponigro, 259 Mass. 365, 157 N. E. 159;Cobb v. Library B......
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...substance of all the evidence material to the questions of law reported. See Crowninshield v. Broughton, 239 Mass. 17, 18; Cohen v. Longarini, 207 Mass. 556 , 557; v. Paradis, 288 Mass. 377, 380. It is undisputed that the defendant occupied the premises under the lease until about October 3......
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...the evidence material to the questions of law reported. See Crowinshield v. Broughton, 239 Mass. 17, 18, 131 N.E. 572;Cohen v. Longarini, 207 Mass. 556, 557, 93 N.E. 702;Swistak v. Paradis, 288 Mass. 377, 380, 192 N.E. 920. It is undisputed that the defendant occupied the premises under the......