Geguzis v. Brockton Standard Shoe Co.

• Decision Date: 28 June 1935
• Parties: GEGUZIS v. BROCKTON STANDARD SHOE CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 368

197 N.E. 51

GEGUZIS v. BROCKTON STANDARD SHOE CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1935

Suit in equity by Jurgis George Geguzis against the Brockton Standard Shoe Company and others. From interlocutory and final decrees, defendants appeal.

Affirmed.

Appeal from Superior Court, Suffolk County; Weed, Judge.

E. H. Fletcher and H. K. Stone, both of Brockton for appellant becker.

C. G Willard, of Brockton, for appellant Wychunas.

A. Hurwitz, of Boston, and A. Rosen, of Brockton, for appellant Winneg.

E. M. Shanley, of Boston, for appellee.

QUA Justice.

This bill was filed May 2, 1929, to compel the delivery to the plaintiff of certain shoe manufacturing machinery and equipment, in a factory at Brockton, which machinery and equipment are alleged to be the property of the plaintiff and to be so withheld that they cannot be relieved. G. L. (Ter. Ed.) c. 214, § 3, cl. 1. There is also a cross bill against the plaintiff brought by the defendants Wychunas and Winneg as assignees of the defendant Brockton Standard Shoe Company under an assignment for the benefit of creditors. The object of the cross bill is to recover for the alleged conversion by the plaintiff of machinery and other property in the same building claimed to have passed to the assignees under the assignment.

Material findings of the master are as follows: In 1922, the plaintiff was the owner of the factory and of the machinery and equipment contained in it. He and others caused the defendant corporation Brockton Standard Shoe Company to be organized for the purpose of manufacturing shoes in this factory. He permitted the corporation to occupy the factory and to use the machinery and equipment. It was expected that the corporation would buy both the real and the personal property, and a vote was passed by the corporation authorizing such purchase. Pursuant to the vote, the corporation took title to the real estate and gave the plaintiff a mortgage back thereon for a part of the purchase price, but failed to make the cash payment required by the terms of the purchase, and the plaintiff never conveyed the personal property to the corporation. The corporation continued to use the real and personal property in its business until it made the assignment of all its assets April 15, 1929, to the defendants Winneg, Wychunas, and Becker. All three assignees accepted the assignment, and on or about said April 15, Winneg and Wychunas took physical possession of all the property contained in the building, but Becker did not take possession and shortly afterwards he assigned his title under the assignment to the other two assignees and took no further part in the assignment. On or about May 2, 1929, which was the day on which the bill was filed, the plaintiff foreclosed his mortgage on the real estate, bought it himself at the sale and thereafter, on either May 2 or May 3, entered and caused the building to be fastened by padlocks. The plaintiff never parted with title to his personal property. Before beginning suit he made demand upon the corporation for its return and was refused. Part of it ‘ has been diverted from said premises,’ and its present whereabouts is unknown to the plaintiff. The plaintiff ‘ is entitled to recover’ the missing property.

The master infers from subsidiary findings of fact aided by permissible inferences what the articles were which had been ‘ diverted’ and that their value was $3,420.65. In the superior court a final decree was entered in favor of the plaintiff against the defendants Brockton Standard Shoe Company, Wychunas and Winneg for the payment of that sum with interest and dismissing the cross bill.

There are no findings by the master to the effect that the defendants or any of them had, when the bill was filed or subsequently thereto, actual possession and control of the articles which were missing and where secreting and withholding the same, nor do we think that under the circumstances of this case we should infer that such was the fact. It is consistent with the facts found that these articles had been sold or disposed of by the assignees after they took possession on or about April 15 and before May 2. The plaintiff has therefore failed to establish facts essential to equitable relief by way of a decree for the return of specified property. G. L. (Ter. Ed.) c. 214, § 3, cl. 1; Travis v. Tyler, 7 Gray, 146.

But there are adequate findings to show that the defendants Wychunas and Winneg converted to their own use property of the plaintiff by taking physical possession of it, together with property of the corporation, under an assignment which conveyed no title to the plaintiff's property. A few days later they had an inventory made ‘ with a view of disposing of the property.’ Assuming as we must that the master's findings of facts are correct, we agree with the trial judge in drawing the inference that it was the defendant assignees who in fact did dispose of the missing articles after they took possession and before the plaintiff entered upon the premises. This was an assertion of dominion over the plaintiff's property. Gilmore v. Newton, 9 Allen, 171, 85 Am.Dec. 749; Dugan v. Nichols, 125 Mass. 576; McPartland v. Read, 11 Allen, 231; Westheimer v. State Loan Co., 195 Mass. 510, 81 N.E. 289; Lancaster v. Stanetsky, 221 Mass. 312, 108 N.E. 1060; Lawyers' Mortgage Investment Corp. of Boston v. Paramount Laundries, Inc., 287 Mass. 357, 191 N.E. 398; New England Road Machinery Co. v. Quincy Oil Co. (Mass.) 195 N.E. 308. It was followed up shortly afterwards by asserting title in the answers filed to this suit and in the cross bill. No demand upon the assignees was necessary, for their possession was never rightful but began with an act of conversion. Riley v. Boston Water Power Co., 11 Cush. 11; Lawyers' Mortgage Investment Corp. of Boston v. Paramount Laundries, Inc., 287 Mass. 357, 191 N.E. 398; New England Road Machinery Co. v. Quincy Oil Co. (Mass.) 195 N.E. 308. We think the defendant corporation is also liable for conversion, as it appears by fair inference that it delivered over to its assignees property of the plaintiff as part of its plant. The permission which the corporation had to use the plaintiff's property did not carry with it permission to turn over its possession to others in this way. Goell v. Smith, ...