Industrial Bankers of Massachusetts v. Reid, Murdoch & Co.

• Decision Date: 30 March 1937
• Citation: 8 N.E.2d 19,297 Mass. 119
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: INDUSTRIAL BANKERS OF MASSACHUSETTS, INC. v. REID, MURDOCH & CO.

297 Mass. 119

8 N.E.2d 19

INDUSTRIAL BANKERS OF MASSACHUSETTS, INC. v. REID, MURDOCH & CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 30, 1937

March 3, 1937.

Present: RUGG, C.

J., PIERCE, FIELD LUMMUS, & QUA, JJ.

Mortgage, Of personal property: recording, attachment of mortgaged property. Statute, Revision. Estoppel. Damages, For tort. Words, "Principally transacts his business." The omission, in the revision of R.L. c. 198, Section 1, by G.L.c. 255,

Section 1, of the words, "or follows his trade or calling," indicated a legislative intent to change the provision and not a mere condensation of the phrase previously employed.

A mortgage of personal property recorded only in a city where the mortgagor lived with his wife except for a part of each week when he boarded in a town where he was steadily employed as a "meat cutter," was properly recorded under G. L (Ter. Ed.) c. 255, Section 1.

A mortgagee of personal property was not estopped to rely on a demand in writing made by his attorney on an attaching creditor under G. L. (Ter.

Ed.) c. 223 Section 75, by reason of the fact that a manager of his business, not comprehending the situation, disavowed the demand, as no act or omission resulted from the disavowal which was detrimental to the attaching creditor.

The full value of a mortgaged automobile at the time of its conversion by a constable on behalf of an attaching creditor of the mortgagor who refused to heed a demand by the mortgagee under G. L (Ter. Ed.) c. 223, Section

75, and not merely the balance due the mortgagee, was the proper measure of damages for the conversion.

TORT. Writ in the First District Court of Eastern Middlesex dated November 6, 1935.

There was a finding by Brooks, J., "that the value of the car at the time of the conversion was" $115, and damages were assessed in that amount. A report to the Appellate Division for the Northern District was ordered dismissed. The defendant appealed.

H. Torf, (H.

J. Barrett with him,) for the defendant.

D. B. Jefferson & W.

Herbits, for the plaintiff, submitted a brief.

PIERCE, J. This is an action of tort for the conversion of an automobile, and is before this court on the appeal of the defendant from the final decision of the Appellate Division for the Northern District.

The trial judge found as follows: On May 21, 1935, the plaintiff lent $100 to Cyril E. Harper, secured by a chattel mortgage on an automobile belonging to Harper. In his application for the loan, dated May 19, 1935, Harper gave his residence as "Everett," and his occupation as "meat cutter" employed by the First National Stores Inc. "Belmont," for about one year. The mortgage was recorded with the city clerk's office in Everett, on May 27, 1935. It was not recorded in Belmont. Harper was steadily employed as a meat cutter for the First National Stores Inc. in Belmont during the period from May, 1934, to November, 1935. He boarded part of the week in Belmont, paying $3 or $4 therefor. In his application for registration of the automobile in question, dated April 29, 1935, and in his application for a renewal of his operator's license, dated August 1, 1935, Belmont was given as his residence. He hired a tenement in Everett, where his wife lived and where he lived when he was not in Belmont. Everett was the residential address he gave and Belmont his place of employment when he mortgaged the automobile.

On September 21, 1935, one Haag, a constable in the town of Belmont, attached Harper's automobile "under a writ of contract" in which the defendant in the present case was plaintiff and Harper defendant. At the time the constable seized the automobile Harper told him that it was subject to a mortgage, but did not state where the mortgage was recorded. Prior to making the attachment Haag had assumed that Harper lived in Belmont, and in searching the records had found no mortgage of Harper recorded. Harper's attorney, one Mr. Herbits, received verbal authority from the plaintiff on September 21, 1935, after the seizure of the automobile by the constable, to represent it in a suitable action to procure release of the attachment, and on September 21 or 22 he communicated with Haag and was referred by him to his attorney, Mr. Torf. Mr. Herbits notified Haag and Mr. Torf of the mortgage in detail, and they refused to release the attachment.

On September 23, 1935, Mr. Herbits instructed an attorney, one Hyman Addis, who worked with him, to send a written demand for the automobile. Mr. Addis did this by letters dated September 23, 1935, addressed to Percival J. Haag, constable, and Hyman J. Torf, attorney for Reid, Murdoch & Co., on the letterhead of Addis and Isenberg, counsellors at law. These letters were in duplicate except as to the name of the addressee, and were signed "Industrial Bankers of Malden Hyman Addis By his attorney." Omitting the letterhead and signature each letter read: "Re: Reid, Murdoch & Co. vs. Cyril E. Harper Dear Sir: Please take notice that the Industrial Bankers of Malden is the mortgagor [sic] named in a certain mortgage given by Cyril E. Harper of Everett, Mass., dated May 21, 1935, and recorded with the records of personal property mortgages City Clerk's Office in the City of Everett, Book 96, Page 227. Said mortgage is in the sum of $100.00 on which there is a balance now due of $70.00 plus $1.75 interest. Said mortgage covers the 1931 Oldsmobile Sedan held under attachment by you in the above-entitled action. I hereby make demand upon you to release said attachment or pay forthwith the amount due the mortgagee on said mortgage. This notice and demand is given you in accordance with Chapter 223, Section 75, General Laws of the Commonwealth of Massachusetts. Whereof fail not or I shall hold you responsible for all damages resulting from your failure to comply with the provisions of the said

Chapter 223 Section 75, General Laws." Upon receipt of the letter, Mr. Torf telephoned the Malden branch office of the plaintiff and asked one King, its manager, if the plaintiff was making a demand as stated in the letters signed by Mr. Addis. In reply, King told Mr. Torf that the "Industrial Bankers of Massachusetts, Inc., was making no demand because the account was in good standing and he did not know an attorney by the name of Addis." Mr. Torf asked King to confirm this conversation by letter, and, under date of September 24, 1935, Mr. Torf received a letter which, omitting the letterhead of the plaintiff and the address of Mr. Torf, reads as follows: "Dear Sir: Confirming our telephone conversation of this afternoon, we wish to advise that Industrial Bankers of Mass., Inc. (Malden Branch) has made no demand on the property of Cyril Harper on which we have a mortgage, since there has been no default in the conditions of said mortgage. Further, we have engaged no Attorney by the name of Hyman Addis. This Company's counsel is Hale & Dorr, 60 State Street, Boston, Mass. Very truly yours, (Signed) Wm. W. King . . . Manager." After the above conversation and letters of September 23 and 24, 1935, Haag continued refusing to recognize Mr. Herbits's authority to demand a release of the attachment. Thereupon Mr. Herbits procured written authority from the plaintiff and sent a copy thereof to Haag on October 24, 1935. "Haag still declined to release the property and a few days later sold Harper's interest in it at public auction to Torf...