Loanes v. Gast

• Citation: 216 Mass. 197,103 N.E. 473
• Parties: LOANES v. GAST.
• Decision Date: 25 November 1913
• Court: United States State Supreme Judicial Court of Massachusetts

216 Mass. 197

103 N.E. 473

LOANES v. GAST.

Supreme Judicial Court of Massachusetts, Suffolk.

November 25, 1913

COUNSEL

Jos L. Keogh, of Boston, for plaintiff.

Wm Hirsh, of Boston, for defendant.

OPINION

RUGG C.J.

This is an action of tort brought by a mortgagee of personal property against a constable who had attached it upon a suit against a third person. The plaintiff's right to maintain his action depends upon the sufficiency of a notice given by him to the defendant in these words: 'You having attached on mesne process [certain chattels] as the property of James Loanes, I hereby give you notice that I am the holder of a mortgage on said property and I hereby demand that you pay the amount of said mortgage, to wit, the sum of one hundred and fifty dollars. Said mortgage is dated October 4, 1910 and recorded in clerk's office, city of Boston, Book 1169, page 577.'

By R. L. c. 167, § 70, such a notice must 'state in writing a just and true account of the debt or demand for which the property is liable to' the mortgagee. The meaning of this requirement is settled. It was said in Wilson v. Crooker, 145 Mass. 571, at page 572, 14 N.E. 798, at page 800, by Mr. Justice Knowlton, that these words 'mean something more than a bare statement of a sum due. They call for a description of the debt or demand, such as will give the attaching creditor a reasonably full and accurate understanding of the nature and particulars of it. The account should state, not merely what amount is due, but also upon what kind of a debt it is due.' The rule of construction thus laid down has been followed in Campbell v. Eastman, 170 Mass. 523, 49 N.E. 914, Ashcroft v. Simmons, 151 Mass. 497, 24 N.E. 398, and Cousins v. O'Brien, 188 Mass. 146, 74 N.E. 289. These cases are decisive against the adequacy of the demand in the case at bar. It contained no statement of account or of the character of the debt due to the plaintiff. It is bare of any definite or particular information touching this subject. The omission is not of a detail but of an essential. There is no assertion even that the face of the mortgage is the amount due upon it. It is nothing more than a bald demand for the amount of the mortgage, but there is nothing about it from which the attaching creditor could determine as to the validity or extent of the lien established by the mortgage.

The judge of the municipal court of the city of Boston, who heard this case in the first instance, found for the plaintiff. One of the questions of law raised upon his report to the appellate division related to the sufficiency of the demand. The appellate division entered a final order as follows: 'Finding reversed and judgment for defendant ordered.' Its power to deal with a report from a single judge is found in St. 1912, c. 649, § 8, in these words: 'If the appellate division shall decide that there has been prejudicial error in the ruling complained of, it may reverse, vacate or modify the same or order a new trial in whole or in part; otherwise it shall dismiss the report.' Power to 'reverse' the ruling of a lower court does not mean power to enter the judgment which the...