Jones v. Goodwillie

• Decision Date: 07 January 1887
• Citation: 9 N.E. 639,143 Mass. 281
• Parties: JONES v. GOODWILLIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 281

9 N.E. 639

JONES v. GOODWILLIE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1887

COUNSEL

J.W. Hubbard, for defendant.

The defendant would not be liable for the conversion, even if the corporation had no title to this property, as he did nothing about it. The plaintiff's cause of action would be against either Newman or the corporation. The plaintiff might have taken his property; and there was no conversion by the defendant. The defendant cannot be held for the acts of Bacon; and the instructions of the court in this respect were properly given. The defendant fails to see any error in the instructions of the court. When the court had instructed the jury, it was the duty of the plaintiff to have suggested to the court what changes he wished to have made in those parts of the charge to which he excepted, or to have stated what additional instructions he desired. If the contract between the plaintiff and the Littlefields was a sale, there was not such a delivery and retention of the property by the plaintiff as to consummate the transaction. If the type in the office of the Littlefields had become mixed with other type, and could not be easily separated, it was through no fault of the corporation or this defendant, and he is not liable therefor.

F.B Patten, for plaintiff.

Under the hypothesis assumed by the court, the bill of sale from the Littlefields to the plaintiff is regarded as in the nature of a mortgage to secure their indebtedness to him. It has been held that, in the case of unrecorded mortgages, and in the analogous case of sales of personal property, without delivery to the vendee, the mortgagee or vendee acquires a title which is good as against all persons except attaching creditors and subsequent bona fide purchasers for a valuable consideration. Pratt v. Harlow, 16 Gray, 379; Parsons v. Dickinson, 11 Pick. 352; Jones, Chat Mortg. § 237. The unauthorized sale of property belonging to another is in itself an act of conversion, even though it were done under a supposed right. Demand and refusal need not be shown. Morrill v. Moulton, 40 Vt. 242; Pease v. Smith, 61 N.Y. 477, and cases cited; Webber v Davis, 44 Me. 147; Harris v. Saunders, 2 Strob.Eq. 370; Fowler v. Hollins, L.R. 7 Q.B. 616; Allen v. McMonagle, 77 Mo. 478; Hiort v. Bott, L.R. 9 Exch. 86, 89; Harris v. Saunders, ubi supra.

OPINION

W. ALLEN, J.

This is an action of tort for the conversion of a printing-press and a quantity of type. The defendant justifies under the Goodwillie-Wyman Company, a corporation, and the plaintiff claims under the Little fields, to whom the Goodwillie-Wyman Company delivered the property under conditional contracts of sale. The condition of the sale of the type has not been performed. It was in dispute whether the sale ever became absolute as to the printing-press. While the Littlefields were in possession under the contracts, they gave to the plaintiff a bill of sale of all the property, and took back from him a conditional contract of sale. It was a question whether the sale to the plaintiff was absolute, in payment of a debt due to him from the Littlefields, or as security for the debt. The defendant removed the property from the printing-office of the Littlefields, where it was in use by them, to the place of business of the Goodwillie-Wyman Company, and the plaintiff relied upon this removal as a conversion of the property.

The plaintiff excepted to the following sentence in the charge to the jury relating to this: "If the defendant did this at the request of the Littlefields, and the jury find that the bill of sale from them to the plaintiff was given merely for the purpose of securing their indebtedness to the plaintiff, this action cannot be maintained for such removal; but, if the removal was not with the consent of the Littlefields, it is of no importance whether the bill of sale was given to secure the debt of the Littlefields to the plaintiff, or in payment of such debt." The instructions were correct. If the transaction between the plaintiff and the Littlefields amounted to a mortgage, the Littlefields had, at least, the right of a mortgagor in possession to transfer the possession of the mortgaged property; and receiving the possession from them of a stranger would not be a conversion of it. The removal of the property from the Littlefields' possession, without their consent, unless under a...