Com. v. Moore

• Decision Date: 04 September 1896
• Citation: 166 Mass. 513,44 N.E. 612
• Parties: COMMONWEALTH v. MOORE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 513

44 N.E. 612

COMMONWEALTH v. MOORE.

Supreme Judicial Court of Massachusetts, Suffolk.

September 4, 1896

COUNSEL

M.J. Sughrue, First Asst. Dist. Atty., for the Commonwealth.

Richard Stone, for defendant.

OPINION

MORTON J.

We assume from the manner in which the case was tried that the agreed facts were subject to any inferences which the jury properly might have drawn, and that such inferences must be considered in determining whether the ruling which the defendant requested should have been given. The defendant contends, in substance, that the investment company had the right to mingle the check with its own funds in the regular course of its business, and that, in depositing it to the account of the company, he only did his duty, and committed no wrong. The agreed facts show that the indictment relates to the proceeds of a note and mortgage which had been sold and delivered by the company in December, 1889, to Mr Bennett, and for which he had paid, the jury could find, the full value. The note was indorsed by the company without recourse, but there was no assignment of the mortgage, and the record title of that remained in the company, which was accustomed to discharge them in such cases when paid. The principal and interest were guarantied by the company. Manifestly, upon these facts, the company held the title in trust for Mr. Bennett. In August, 1894, the company received a letter from certain parties in Kansas City stating that they desired to pay off the mortgage, and entering quite fully into the arrangements which they proposed for that purpose. Thereupon the defendant, without at all disclosing to Mr. Bennett the contents of the letter, but, as the jury might have found, fraudulently concealing them from him addressed a note to him, asking him to send them the papers for collection, and saying that they wished "to present them to the maker at Kansas City, at their due date, with demand for payment." The letter which had been received designated New York as the place of payment, and named the bankers on whom the company was to draw for the amount due and requested that certain papers, which included the note and mortgage, should be attached to the draft. In response to the defendant's letter, Mr. Bennett sent the note and mortgage to the office of the company in Boston, and received therefor a written acknowledgment, signed by the president, in the name of the company, and stating that they had received them "for collection." With the contents of this receipt the jury also might have found that the defendant was acquainted. The effect of this transaction was, we think, to constitute the company the agent or trustee of Mr. Bennett to collect the mortgage and note, and not to create the relation of debtor and creditor between them and him. They received the note and mortgage as bailees for a special purpose. The property remained in Mr. Bennett, and the proceeds, so long as they were capable of identification, were his, and he could have followed them as against creditors of the company. His right and title to them were not affected by the fact that they included interest to the amount of $150, which the company had previously paid him, and for which they had a claim against him. Com. v. Tuckerman, 10 Gray, 173, 196; Com. v. Smith, 129 Mass. 104, 110; Bresnihan v. Sheehan, 125 Mass. 11; Bank v. Barry, Id. 20; Peak v. Ellicott, 30 Kan. 158, 1 P. 499; McLeod v. Evans, 66 Wis. 401, 28 N.W. 173, 214.

The draft and papers were sent to New York by the defendant, and a check for the amount due, payable to the order of the company, was duly received, and was indorsed by the defendant, and deposited by him to the credit of the company in its general account at a bank in Boston, and, it is to be presumed, was paid. The defendant did not notify Mr. Bennett that the money had been collected, nor inform him what had been done, but concealed the facts from him, and subsequently wrote him several letters, to which it is not necessary now to refer, except to say that they contained various misrepresentations in regard to the loan and collection of the money, the effect of which, so far as Mr. Bennett was concerned, is...