Hamilton v. McLaughlin

• Citation: 145 Mass. 20,12 N.E. 424
• Parties: HAMILTON and another v. MCLAUGHLIN.
• Decision Date: 01 July 1887
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 20

12 N.E. 424

HAMILTON and another v. MCLAUGHLIN.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1887

Tort for the conversion of a horse. The answer contained a general denial, and also set up a lien claim for board of the horse. At the trial in the superior court, before KNOWLTON, J., the plaintiff introduced evidence substantially as follows:

One Peasley testified: "I was superintendent of stable in Worcester, for the Worcester Herdic Phaeton Company, from November, 1881, until April, 1883, and had charge of all the horses,--about one hundred. The horse for which this suit was brought was there when I went there. In the spring of 1884, I went to the defendant's stable in Boston to identify the horse. I saw this horse, and defendant refused to give him up unless we paid the board bill. I saw other horses of the company in Boston in September, 1883. This horse was worth about $75."

One Backall testified: "In March, 1884, I was appointed agent or attorney, under letters of attorney from the plaintiffs in this suit, to recover some horses that they had a mortgage on, and learned that one of the horses was at defendant's stable, and in April I called to see about getting it. Saw defendants, who refused to deliver the horse unless his board was paid. I did not ask the amount, nor offer to pay anything." On cross-examination he said "I learned where the horse was, from a man named Strapney, who boarded the horse with the defendant, and who had hired the horse previously from a man named Nutting, who at one time represented the Worcester Company here, but I do not know whether he did at this time or not. I got a postal-card from defendant saying that he had a horse of the company's, and the amount of board due, and to come for him. As soon as I could I arranged with Mr. Peasley to go with me and identify the horse. The amount of the bill was for the board of the horse for the whole time that remained unpaid, both before and after notice to the plaintiffs' agent that the horse was there; and nothing was said by either party regarding payment of that part of the bill which accrued after notice, except as it was included in the whole claim. No interest was ever paid on the mortgage, nor any of the principal."

The plaintiffs offered a mortgage from the Worcester Herdic Phaeton Company to the plaintiffs, dated April 15, 1882, for $10,000 on 100 horses and other personal property, which contained the usual covenant that until default the mortgagor should retain the use and possession of the mortgaged premises. It was proved that the condition of the mortgage had been broken.

The defendant testified that he kept the Metropolitan stables in Boston in 1884, and at the time Mr. Backall came for the horse there was board due from the time he took the stable in March, besides the two or three weeks after he notified him to come for the horse,--about $40 in all; and that the horse was worth about $40 or $50. The plaintiffs contended that the horse was taken to defendant's stable without the knowledge or consent of the plaintiffs, and therefore no lien could run against them; but the court instructed the jury that, if the horse was taken to the defendant's stable with the express or implied consent of the plaintiffs, they could not recover. The defendant contended that, even though there was no lien prior to the notice to the plaintiffs' attorney, there would be a lien for the term subsequent to the notice, and requested the instruction that it was incumbent upon the plaintiffs to prove that the mortgage was at the time of bringing of this suit or the refusal to deliver the horse, a valid existing mortgage; and, incident thereto, that it was their duty to prove that the Worcester Herdic Phaeton Company was a corporation duly established by law, and that the person signing the name of said corporation to this mortgage had authority, by vote of that corporation so to do; a failure of such proof being fatal to the plaintiffs' case. The court gave the ruling, but also added "that the introduction of the mortgage in evidence is sufficient to allow you to find those facts. The signature and seal appear to be regular and proper, and are sufficient prima facie to establish their claim unless attacked."

The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.

COUNSEL

Collins, Burke & Griffin, for defendant.

The plaintiffs were duly notified, through their attorney, that this horse was at his stable, and to call for him, which plaintiffs did not do until between two and three weeks had elapsed. For such time the defendant boarded and fed the horse, with the knowledge and implied consent of the plaintiffs, and a lien attached thereon for such board. This consent may be implied, it being for the interest of the mortgagee and mortgagors to preserve the security. Hammond v. Danielson, 126 Mass. 294. By the refusal of the court below to give the second and third requests, the jury were erroneously led to believe that the only question for their determination was whether the plaintiffs had notice when the horse was first brought there. To give the plaintiffs a right to recover they must prove that the mortgage relied upon was a valid, existing mortgage. If...