Goell v. Morse

• Decision Date: 08 April 1879
• Citation: Goell v. Morse, 126 Mass. 480 (Mass. 1879)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frank A. Goell v. Richard Morse & another

126 Mass. 480

Frank A. Goell v. Richard Morse & another

Supreme Court of Massachusetts

April 8, 1879

Essex.Tort against Richard Morse and Charles J. Willis for the conversion of one half of a horse, with a count in contract for money had and received.Writ dated February 18, 1875.Answer, a general denial.Trial in the Superior Court without a jury, before Brigham, C. J., who found the following facts.

The defendant Willis, before purchasing the horse in question informed the plaintiff that the horse was for sale for $ 350 and proposed that the plaintiff should join him in the purchase of the horse on speculation, and, after seeing the horse, the plaintiff agreed to do so.Thereupon Willis purchased the horse on January 11, 1873, and the plaintiff gave Willis $ 150, and received a receipt therefor.The plaintiff and Willis then agreed that either of them, having possession of the horse, should provide for his keeping without cost to the other, and that each should offer him for sale and endeavor to procure a purchaser at a profit over his cost, but that neither should sell the horse without the concurrence of the other.Under this agreement, the horse was sometimes in the plaintiff's possession and sometimes in Willis's possession, was advertised and exhibited for sale by them severally, and kept at the cost of each, as he happened to have possession of him.On or about November 7 1875, the horse, having been placed by Willis in the stable of the defendant Morse in July previous, and the cost of his keeping having become large and beyond the ability of Willis to pay, was sold by Morse by authority of Willis for $ 375, out of which Morse retained the cost of the horse's keeping, and paid the balance, in furniture and cash, to Willis.No part of the proceeds of such sale was paid to the plaintiff, or accounted for to him, and the sale was made without the knowledge or consent of the plaintiff, and without any reservation as to his half interest in the horse.After the sale, and before bringing this action, the plaintiff demanded the horse of Morse, and Morse refused to deliver him.Willis, while he had possession of the horse, expended in his subsistence, shoeing and care, and in advertisements offering him for sale, a sum exceeding the gross proceeds of the sale, and his market value, exclusive of the charges of Morse, who was not, when keeping the horse, an innkeeper or livery-stable keeper, but was a...