Cornell v. Mahoney

• Decision Date: 08 January 1906
• Citation: 190 Mass. 265,76 N.E. 664
• Parties: CORNELL v. MAHONEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 265

76 N.E. 664

CORNELL v. MAHONEY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1906

COUNSEL

J. & J Ballantyne, for plaintiff.

John W Converse, for defendant.

OPINION

MORTON, J.

This is an action of tort for the alleged conversion by the defendant, under the following circumstances, of certain personal property belonging to the plaintiff. The defendant is a common carrier. On or about April 15, 1903, the plaintiff employed and paid him to carry certain boxes barrels, trunks and a sewing machine to his office, and keep them there until he received orders from her, and then to take them to a railroad depot for shipment to New York. The boxes, barrels, and trunks contained household goods, wearing apparel, a $10 bill, and other articles. A few days later, on April 24th, she went to him and made a general demand for the boxes, barrels, trunks, and sewing machine, and he refused to let her have them. On cross-examination she testified that he told her that they had been attached, and he would let the law take its course. There was testimony tending to show that, when the defendant received the boxes, barrels, and trunks, their contents could not be seen, and he did not know what they contained. The defendant offered to show, by the records of the municipal court of Boston, that on the 23d day of April, 1903, he was summoned as trustee in an action wherein one Martha J. Kearney was the plaintiff and one Ellen Cornell was the principal defendant, and that the action was duly entered on the return day, and he had appeared therein and had not been charged or discharged. There was also evidence that the Ellen Cornell in the trustee suit is the Maria Cornell of this suit. The court refused to allow the records of the municipal court to be introduced in evidence, and ruled that the service of the trustee writ upon the defendant, and the entry and pendency of that suit in that court, did not constitute a defense to the present action. The defendant excepted to the exclusion of this evidence and to the ruling. There was a verdict for the plaintiff, and the case is here on exceptions by the defendant to the exclusion of the evidence thus offered and the ruling thus made, and to the refusal to give certain instructions that were requested.

We think that the ruling was wrong, and that the evidence should have been admitted. If, as there was evidence tending to show, the principal defendant in the trustee suit was the same person as the plaintiff in this action, then the effect of the service of the trustee process upon the defendant was to attach in his hands, so far as they were subject to attachment, the very goods which he is now charged with having converted to his own use because he declined to give them up after they had been so attached. The goods having been attached in his hands, he was bound to keep them, so that, if charged as trustee by reason of their possession, he could deliver them to the officer, to be taken on execution. (Rev. Laws, c. 189, § 57); and, in the absence of collusion between himself and the attaching creditor, he could not be deemed guilty of conversion for...