Herries v. Bell
| Decision Date | 26 February 1915 |
| Citation | 220 Mass. 243,107 N.E. 944 |
| Parties | HERRIES v. BELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Alfd. E. McCleary and Stebbins, Storer & Burbank, all of Boston, for plaintiff.
Samuel R. Cutler and Harry W. James, both of Boston, for defendant.
On a Lord's Day in 1910, the defendant voluntarily gave and delivered to the plaintiff's wife a Scotch collie dog, for the alleged conversion of which this action was brought.
The gift, complete in itself, contains no element of labor, business or work. It is not an act of contract; it does not give rise to any contractual obligation, and it is not in violation of chapter 98 of the Revised Laws.
In May, 1911, the dog was delivered into the possession of the defendant by the plaintiff, with the consent of his wife, and was retained by the defendant until the fall of 1911, when, secretly, with the approval of his wife, the plaintiff took it away.
The bill of exceptions does not state, nor can it be inferred therefrom, that he purpose of this delivery to the defendant was to revest the title by way of gift, sale or otherwise. Such delivery created, at the highest, a bailment at will revocable without demand or notice at the pleasure of the bailor.
The dog, while in the possession of the plaintiff, of its own volition or in response to the whistle call of the defendant, followed the defendant's team to the home of the defendant, and was there detained under a claim of ownership, against the demand of the plaintiff.
At the time the dog followed the team at the call of the defendant the plaintiff had the possession, and by reason of the wife's consent thereto, the right to possession as against all persons other than the wife. The taking of the dog, the refusal to deliver on demand under an assertion of title, either or both, was a conversion. The plaintiff could maintain the action because of the wrong to his possession, and if more, the right to possession, were needed, the wife at the trial testified that she had granted it.
The plaintiff as bailee was entitled to recover full damages. Pratt v. Boston Heel & Leather Co., 134 Mass. 300. There was no error in the refusal to give the rulings requested or in those given.
Exceptions overruled.
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