Greenall v. Hersum

• Decision Date: 27 February 1915
• Citation: 107 N.E. 941,220 Mass. 278
• Parties: GREENALL v. HERSUM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 278

107 N.E. 941

GREENALL v. HERSUM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1915

COUNSEL

Clarence F. Eldredge and Harold Caverly, both of Boston, for plaintiff.

Harry F. R. Dolan, Jas. H. Morson, and John A. L. Odde, all of Boston, for defendants.

OPINION

BRALEY J.

The jury would have been warranted in finding upon confiicting testimony that the defendants as bailees upon demand by the plaintiff failed to deliver the goods which they had received for storage because of a prior delivery to his wife, and as they further could find that she acted without his authority there was a conversion which ordinarily would entitle him to recover damages, and the fifth ruling requested could not have been given. Lorain Steel Co. v. Norfolk & Bristol St. Ry., 187 Mass. 500, 506, 73 N.E. 646; Wright & Colton Wire Cloth Co. v. Warren, 177 Mass. 283, 58 N.E 1082. But after the bailor having been adjudged a bankrupt and no reconveyance having been made by the trustee before the action was begun, the defendants contend that he failed to show any right to immediate possession, and the first second, third, fourth and sixth requests should have been given. Raymond Syndicate v. Guttentag, 177 Mass 562, 59 N.E. 446; Hodgkins v. Bowser, 195 Mass. 141, 80 N.E. 796; U.S. St. of 1898, c. 541, 30 Stat. 565, § 70 (U. S. Comp. St. 1913, § 9654). It is, however, settled that the trustee is not obliged to accept title to property if in his opinion it is worthless, and he well might have concluded that any assertion of ownership meant a lawsuit, the outcome of which was so uncertain that the estate ought not to be put to the expense of fruitless litigation. Dushane v. Beall, 161 U.S. 513, 515, 16 S.Ct. 637, 40 L.Ed. 791. If he had expressly renounced title or declined to claim the goods prior to the action, the election would have been sufficient to show that the plaintiff was entitled to possession. Mayhew v. Pentecost, 129 Mass. 332. But as the trustee's assent may be shown as well after as before suit, his disclaimer filed and allowed during the trial and before verdict removed the objection. Herring v. Downing, 146 Mass. 10, 15 N.E. 116. It moreover is plain that the judgment will bar further suits for the same cause of action. Stone v. Jenkins, 176 Mass. 544, 545, 546, 57 N.E. 1002, 79 Am. St. Rep. 343. We are accordingly of opinion that these rulings were rightly refused and...