Magaw v. Beals

• Decision Date: 11 July 1930
• Citation: 172 N.E. 347,272 Mass. 334
• Parties: MAGAW v. BEALS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 334

172 N.E. 347

MAGAW

v.BEALS.

Supreme Judicial Court of Massachusetts, Suffolk.

July 11, 1930.

Report from Superior Court, Suffolk County; W. Thayer, Judge.

Action by Mary K. Magaw against Sidney L. Beals. Verdict for plaintiff on two counts and also on fifth count, and case reported for determination by the Supreme Judicial Court.

Judgment for defendant on count 5. Judgment for plaintiff on two counts.M. W. Powers, of Boston, for plaintiff.

P. Nichols, of Boston, for defendant.

SANDERSON, J.

This is an action of tort in which the plaintiff recovered damages on three counts-two based upon the alleged institution without probable cause of a false and malicious action against her and upon maliciously causing an excessive attachment to be made of her personal property. No question is now raised as to the validity of the verdict for the plaintiff on these two counts.

The plaintiff also recovered damages on the fifth count for conversion alleging that a constable seized, under color of authority of a writ in an action of contract brought by the defendant against the plaintiff, certain household goods and other personal property of the plaintiff not exempt from attachment, and placed them in storage in a room owned and controlled by the defendant; that after trial that action went to final judgment in favor of the present plaintiff in July, 1922, and that thereupon the attachment was dissolved, and the plaintiff became entitled to the possession of her property; that thereafter demand was made of the constable and of the defendant for the return of the property attached, which was still in storage in the defendant's building in compliance with his directions, but this demand was not complied with. When the goods were placed in storage the officer caused the door of the room in which they were placed to be locked and retained the key in his possession.

The defendant now makes two contentions; the first is that the bringing of a former action by the plaintiff and recovery and enforcement of judgment therein constitute a bar to recovery of judgment for conversion in this action; and his second is that, if there was property of the plaintiff which might be converted by the defendant after the termination of the attachment, the evidence would not justify a finding that he converted it.

The former action by the plaintiff, to which reference has been made, was brought against the defendant immediately after he had caused to be attached the personal property of the plaintiff, including the property which by law was exempt from attachment. The plaintiff in her former action sought recovery in one count of the declaration for the alleged conversion of certain personal porperty. The jury could have found that in the trial of that issue the trial judge limited the plaintiff in her proof to her right to recover the value of that part of the personal property attached, which by law is not attachable because exempt from being taken on execution. The part of the charge in that case incorporated in the present record indicates that the verdict for the plaintiff on this issue must have been based solely on the conversion of the property so exempt. The opinion of this court in that case appears in Magaw v. Beals, 242 Mass. 321, 136 N. E. 174, and the opinion in the case in which the original attachment was made appears in Beals v. Magaw, 242 Mass. 328, 136 N. E. 156. In the present action the plaintiff's recovery for conversion was limited to the property attached not exempt by law from attachment.

It is a general rule that ‘a judgment on its merits in a former action between the same parties is a bar, as to every issue which in fact was or in law might have been litigated, to later action upon the same cause.’ Cote v. New England Navigation Co., 213 Mass. 177, 180, 99 N. E. 972, 974. See also Trask v. Hartford & New Haven Railroad Co., 2 Allen, 331;Goodrich v. Yale, 97 Mass. 15;Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006;Fitzgerald v. Heady, 225 Mass. 75, 113 N. E. 844;Canning v. Shippee, 246 Mass. 339, 141 N. E. 79. It is also an established rule that an action for the conversion of chattels will bar a subsequent action for the conversion of other chattels taken by the same act. Folsom v. Clemence, 119 Mass. 473;McCaffrey v. Carter, 125 Mass. 330;Sullivan v. Baxter, 150 Mass. 261, 22 N. E. 895. But these principles are not applicable to the facts of the present case. When the former action was brought the only part of the attachment which in that action could be found to be wrongful related to the property for the conversion of which the plaintiff was there permitted to recover. G. L. c. 223, § 42, and c. 235, § 34. Magaw v. Beals, 242 Mass. 321, 325, 136 N. E. 174. Under the writ in the original action brought by the defendant attachment of property liable to be taken on execution was authorized and the attachment made would remain valid until final judgment for the defendant in the case, unless reduced or dissolved in the manner provided by law or its invalidity were otherwise established. By the terms of the statute, with certain exceptions not material to this case, all property liable to be taken on execution...