Duggan v. Wright
| Decision Date | 20 October 1892 |
| Parties | DUGGAN v. WRIGHT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The declaration was as follows: "And the plaintiff says that defendant has converted to his own use one meat cart, one spring wagon, one meat box-sleigh, the property of the plaintiff." On the trial plaintiff claimed the property as the assignee of a mortgage thereon given by her husband to one Burke before her marriage, and assigned to her after her marriage. The evidence showed that the plaintiff delivered a check, received by her as a marriage gift, to her husband, with instructions to deliver it to her attorney for the purpose of paying the mortgage debt to the mortgagee, and having the mortgage assigned to her, which was done. The defendant asked the court to rule (1) That if the husband took the money himself, and paid it to the mortgagee through his attorney, the payment operated as a payment by the husband of his own debt, and the wife cannot recover; (2) that the plaintiff, being the wife of James P. Duggan, and the assignee of the mortgage given by him, cannot maintain this action; (3) that, if the check was indorsed in blank by the payee, it passed to the husband on delivery to him, and his paying it to his mortgagee through his attorney operated as payment of the debt of the husband. There was no evidence that the plaintiff's husband made any payment of money to the mortgagee.
J.B O'Donnell, for plaintiff.
J Arthur Wainwright, for defendant.
1. The declaration was in the form prescribed by Pub.St. c. 167, § 94, for trover, and is sufficient to allow proof of all the facts necessary to maintain an action of that nature. The allegation that the defendant has converted the plaintiff's property to his own use is not an allegation of a conclusion of law, but of a fact which may be described as "composite," and it allows evidence to be introduced of all such unjustified dealing with the property named as may tend to show a wrongful taking and disposal of it to the prejudice of the plaintiff's rights. Wells v. Connable, 138 Mass. 513. The allegation that the property converted was the property of the plaintiff is not an averment that the plaintiff was the absolute owner, but makes admissible any evidence showing that the plaintiff stood in such a relation to the property that she had a right to maintain the action. The remedy has long been the usual one employed by mortgagees of personalty, and cannot be defeated by technical objections such as are urged by the defendant. Alden v. Lincoln, 13 Metc. (Mass.) 204; Robinson v. Sprague, 125 Mass. 582. The proof of a written demand was evidence of a subsidiary fact showing conversion; and, under the construction given to the statute form of declaration in trover by the uniform practice of the courts, was properly admitted. The proof of a mortgage title in the plaintiff...
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