Jones v. Cobb

• Decision Date: 23 December 1891
• Citation: 24 A. 798,84 Me. 153
• Parties: JONES et al. v. COBB.
• Court: Maine Supreme Court

24 A. 798

84 Me. 153

JONES et al.

v. COBB.

Supreme Judicial Court of Maine.

Dec. 23, 1891.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Trover and conversion by William S. Jones and another against Lewis A. Cobb. There was a verdict for plaintiffs, and defendant's motion for a new trial was denied. Defendant excepts. Exceptions sustained, and new trial granted.

O. C. & C. E. Wing, for plaintiffs.

Savage & Oakes, for defendant.

VIRGIN, J. Trover for the alleged conversion of 91 cases of toothpicks. The defendant now seeks to have the verdict against him set aside.

The plaintiffs' title is founded upon a mortgage given to secure a note payable in one year from February 1, 1889, the mortgagors "to continue in possession of the chattels until breach of the condition."

This action was commenced on November 2, 1889, three months before the expiration of the term of credit, during which the mortgagors were to retain possession.

It is elementary that to maintain trover the plaintiff, though the general owner, must have the right of possession at the time of conversion. 2 Greenl. Ev. § 636. And while a mortgage of chattels vests the title conditionally in the mortgagee, and generally the right of possession follows the title, and, in the absence of any stipulation to the contrary, the right of possession is presumed to be in the mortgagee, (Holmes v. Sprowl, 31 Me. 73,) and he may maintain that right by trover or replevin, even before the expiration of the term of credit given to the mortgagor, (Tibbetts v. Towle, 12 Me. 341; Pickard v. Low, 15 Me. 48; Ferguson v. Thomas, 26 Me. 499; Bunker v. McKenney, 63 Me. 529,) still the mortgagee may, by a valid binding agreement, deprive himself of that right, and hence the power to bring an action of trover therefor, for a specific time; and that agreement may be contained in the mortgage like the one at bar, (Ingraham v. Martin, 15 Me. 373,) or by parol made at the same time, (Pierce v. Stevens, 30 Me. 184.)

The plaintiffs contend that they had the right of possession on November 2, 1889, when they commenced their action, notwithstanding the time stipulated in the mortgage had not expired by reason of a formal release from the mortgagors dated July 17, 1889. But the release was objected to and excluded until its execution was proved, and there was no evidence of its execution.

It is also urged that the agent of the plaintiffs, (mortgagees,) by their direction, took possession of the property in June, prior to the date of the release, by taking the key to the room in which the property was stored. But there is no evidence that the mortgagors gave their consent; the mortgagees alone could not modify the stipulation in the mortgage. We do not mean, however, to decide that the mortgagees would be without remedy.

Again, the jury found as damages the whole...