Drury v. Moors

Decision Date20 May 1898
Citation50 N.E. 618,171 Mass. 252
PartiesDRURY et al. v. MOORS et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

S.L. Whipple and Jeremiah Smith, Jr., for plaintiffs.

R.M Morse, for defendants.

OPINION

HOLMES J.

This is an action by assignees in insolvency to recover the value of certain goods converted by the defendant to his own use. The goods in question were mortgaged or pledged to the defendant by one Houdlette, in the manner and course of dealing described in Moors v. Reading, 167 Mass. 322, 45 N.E. 760; and the question here, as there, is whether the mortgaged property was delivered to, and retained by, Moors. St.1883, c. 72, § 2.

It is argued that this case may be distinguished from the former one, because there the goods were only a part of the goods in Houdlette's warehouse, and were mingled with Houdlette's own through Moors' neglect or permission and also because they formed a principal part of Houdlette's stock in trade, etc., whereas in the case at bar the iron was in a yard where heavy goods were kept, under lock and key, and sufficiently identified. The yard was at some distance from the warehouse, and was separated from it by streets and buildings. But, in our opinion, if there are differences between this case and the former one they are unfavorable to the defendant. It is questionable whether there is any evidence of delivery, which seems to have been proved in the former case. See Moors v. Reading, 167 Mass. 322, 324, 45 N.E. 760, and Parry v. Libbey, 166 Mass. 112, 44 N.E. 124. And whereas it might have been argued in the former case that the large liberty allowed Houdlette in the way of selling the mortgaged goods, the mixture with Houdlette's own, and the influx and efflux to and from the mortgaged stock, were only evidence warranting a finding that Moors did not retain possession rather than indicia requiring a ruling, as matter of law that he did not, here there are the additional facts that the goods were under lock and key in Houdlette's private inclosure, and that the only key known, so far as appears, was in Houdlette's possession. The testimony is that the key was kept in Houdlette's office, over the desk of Garrett, the bookkeeper whom Moors had made his agent to keep possession of the property; but it nowhere is suggested that he held this key adversely to Houdlette, or that he had any such relation to it that he could have sued for it if it...

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13 cases
  • Fourth St. Nat. Bank v. Millbourne Mills Co.'s Trustee
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 10, 1909
    ... ... of the creditors, in the mode prescribed by law and an ... assertion of that right in their own names. ' And in line ... with this, in Moors v. Reading, 167 Mass. 322, 45 ... N.E. 760, 57 Am.St.Rep. 460, and Drury v. Moors, 171 ... Mass. 252, 50 N.E. 618, a trustee in insolvency, as ... ...
  • In re Spanish-American Cork Products Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 23, 1924
    ...172 F. 177, 96 C. C. A. 629, 30 L. R. A. (N. S.) 552; Moors v. Reading, 167 Mass. 322, 45 N. E. 760, 57 Am. St. Rep. 460; Drury v. Moors, 171 Mass. 253, 50 N. E. 618; American Can Co. v. Erie Preserving Co., 183 F. 96, 105 C. C. A. This case being here properly on an appeal, the petition to......
  • Security Warehousing Co. v. Hand
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 2, 1906
    ...take and maintain an open, exclusive and unequivocal possession. Dirigo Tool Co. v. Woodruff, 41 N.J.Eq. 336, 7 A. 125; Drury v. Moors, 171 Mass. 252, 50 N.E. 618; Bank v. Jagode, 186 Pa. 556, 40 A. 1018, Am.St.Rep. 876; Casey v. Cavaroc, 96 U.S. 467, 24 L.Ed. 779. At Stevens Point the incl......
  • Robinson v. State
    • United States
    • Mississippi Supreme Court
    • February 7, 1938
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