Giguere v. Morrisette.

• Decision Date: 12 July 1946
• Citation: 48 A.2d 257
• Parties: GIGUERE v. MORRISETTE.
• Court: Maine Supreme Court

48 A.2d 257

GIGUERE

v.MORRISETTE.

Supreme Judicial Court of Maine.

July 12, 1946.

Action of trover by Philip Giguere against Mathias Morrisette to recover the value of a portion of a car of watermelons. The plaintiff's motion for a directed verdict at the conclusion of the evidence was denied, and the plaintiff brings exceptions.

Exceptions overruled.

Jerome G. Daviau, of Waterville, for plaintiff.

F. Harold Dubord, of Waterville, for defendant.

Before STURGIS, C. J., and THAXTER, HUDSON, MURCHIE, THOMPKINS, and FELLOWS, JJ.

FELLOWS, Justice.

This is an action of trover brought by Philip Giguere v. Mathias Morrisette to recover the value of a portion of a car of watermelons. At the conclusion of the evidence the plaintiff moved for a directed verdict, which motion was denied. The case comes to the Law Court on plaintiff's exceptions for refusal to so direct.

It appears that on Friday, June 29, 1945, the First National Stores received a shipment of a car of watermelons, which car arrived at the Waterville freight yard. This car was to be unloaded within three days from this date, in order for the First National Stores to avoid demurrage charges. Upon arrival, the First National Stores ascertained that many of the watermelons were over-ripe and were spoiling. The defendant Morrisette, in the trucking business, testified he was instructed by the First National Stores to bring to its Waterville store such of the melons as were saleable at the store, and to clean out the car by Monday. There were about 1200 melons in the car; and Morrisette, according to instructions, hauled to the store on Saturday 350 of the best melons. Morrisette believed that some of the remaining melons had a value, and offered to turn them over to the plaintiff on condition that the plaintiff would clean out the car not later than Monday night. The plaintiff denies that there was this condition in Morrisette's offer to transfer. The watermelons, which had any value, were to be sold by the plaintiff outside of Waterville, and he was to pay to the defendant 10¢ for each watermelon sold. The arrangement between the parties, whatever it may have been, was arrived at on Monday morning July 2, 1945.

The defendant placed his own padlock upon the freight car, and at the time of entering into the agreement with the plaintiff he gave to the plaintiff his key to this lock. The plaintiff testified that upon receiving the key he ‘went to the office of the Maine Central and fixed up about demurrage’.

Late in the afternoon of Monday, July 2nd, the defendant learned that the plaintiff had not removed the melons and had not cleaned the car; and in order to comply with his agreement with the First National Stores, the defendant says he broke the padlock that he had placed on the railroad car, and took out 315 melons that appeared to have value. These 315 melons he put into his truck, and went to the home of the plaintiff, who then had the key to the padlock, and offered to deliver the melons to the plaintiff. The plaintiff refused to accept, and said that he would be at the home of the defendant early the following morning. On July 3, 1945, the plaintiff failed to come to the home of the defendant, and the defendant again drove to the plaintiff's house and again offered to deliver the melons on his truck to the plaintiff. The plaintiff again refused to accept, and the defendant then sent his truck to Augusta, where these remaining melons were sold for $88.00. Employees of the defendant cleaned the car early in the morning of July 3rd. The plaintiff then brought this action of trover.

In support of his motion for a directed verdict the plaintiff claimed that there was no question of fact for the jury to pass upon; that he owned the melons, or at least had the right of possession to them, and that delivery of the key was delivery of the melons. The plaintiff also denied that he agreed to have them out of the car on Monday night, and for that reason told the railroad agent that he assumed any charges on the car. The plaintiff further claimed that ‘a conditional contract as testified to by the defendant did not privilege him to use force in the recaption of the goods,’ and that no demand was shown.

The defendant stated that his rights of disposal were given to the plaintiff on condition that the melons be removed from the car and the car cleaned on Monday; and that ‘at the time of the alleged conversion plaintiff neither had title to nor right of possession to the goods in issue.’

The case was submitted to the jury and the jury returned a verdict for the defendant. The question for decision is whether the ruling of the Court in denying the motion, to direct a verdict for the plaintiff, was proper.

[1] [2] [3] The common law action of trover was originally an action brought by a person who had lost personal property, and it was directed against the finder of the property. The ancient form of declaration, followed by the plaintiff in this case, alleges possession of the goods, their ‘loss,’ and the ‘finding’ by the defendant. By a legal fiction it has become the appropriate form of action whenever a plaintiff seeks to recover damages from a defendant who deprives a plaintiff of his personal property, or who has converted a plaintiff's goods to his own use. The action lies for any unauthorized assumption or exercise of the right of ownership, or possession, over goods belonging to another, or to another who has the right of possession. Under our practice ‘the gist of the action [is] the invasion of the plaintiff's possession.’ Webber v. McAvoy, 117 Me. 326, 327, 104 A. 513.

The plaintiff must show that he had a general, or a special property in the goods, and the right to their possession at the time of the alleged conversion. If there were conditions, or his right to possession depended on a condition, he must show a compliance with the condition. Landry v. Mandelstam, 109 Me. 376, 84...