Malden Ctr. Garage, Inc. v. Berkowitz

• Decision Date: 30 November 1929
• Citation: 168 N.E. 916,269 Mass. 303
• Parties: MALDEN CENTER GARAGE, Inc., v. BERKOWITZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 303

168 N.E. 916

MALDEN CENTER GARAGE, Inc.,

v.BERKOWITZ et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 30, 1929.

Appeal from Superior Court, Suffolk County; Bishop, Judge.

Suit by the Malden Center Garage, Inc., against Morris J. Berkowitz and others. Decree for plaintiff, and defendants appeal. Affirmed.

1. Sales k480(4)-Evidence sustained finding in suit by conditional vendor of automobile against vendee, attaching creditor, creditor's attorney, and constable, that automobile was secreted (G. L. c. 214, s 3(1).

In suit by conditional vendor of automobile for equitable replevin, under G. L. c. 214, s 3(1), in which recovery was sought against vendee, attaching creditor of vendee, creditor's attorney, and constable, evidence that automobile was taken and stored by constable under attachment and levy, and that constable failed to disclose where car could be found, justified finding of identity of automobile and that it was secreted or withheld so that it could not be taken on writ of replevin.

2. Sales k474(1)-Conditional vendor of automobile given right to possession in case of attachment, had possessory right superior to attaching creditor.

Conditional vendor of automobile under contract giving vendor right to immediate possession in case of failure to pay installments or in case vendee should suffer or permit attachment or levy upon automobile, had right to possession of car as against vendee's attaching creditor, where there was no waiver on part of conditional vendor.

3. Sales k474(1)-Statutes permitting attachment of mortgaged property held not to apply to property received under conditional sales contract (G. L. c. 223, ss 74, 75).

Provisions of G. L. c. 223, ss 74, 75, permitting attachment of property of debtor subject to mortgage, pledge, or lien and of which he has right of redemption, held not to apply to property received by debtor under lease or conditional contract of sale providing title shall not pass until property is paid for.

4. Sales k480(2) Conditional vendor suing for equitable replevin of automobile was not required to make prior demand where officer attempted to hold car under adverse title (G. L. c. 214, s 3(1).

Where constable under attachment, writ and levy attempted to hold automobile by title adverse to right of plaintiff as conditional vendor having superior right of possession, plaintiff was not required to make demand before bringing action for equitable replevin under G. L. c. 214, s 3(1), on ground property was secreted or withheld.

5. Sales k480(1)-That constable seized automobile under attachment and as officer did not relieve him of liability to conditional vendor suing for equitable replevin (G. L. c. 214, s 3(1).

That constable took possession of automobile as officer under writ of attachment and levy in favor of conditional vendee's creditor did not afford him protection in suit for equitable replevin under G. L. c. 214, s 3(1), by conditional vendor on ground of seizure and storing and secreting of automobile under adverse claim of title.

6. Sales k480(1)-Attaching creditor and attorney who directed constable to secrete car and assisted him therein were liable for return thereof and damages in conditional vendor's suit for equitable replevin (G. L. c. 214, s 3(1).

In suit by conditional vendor for equitable replevin of automobile claimed to have been secreted by officer under attachment writ and levy in favor of vendee's creditor so that property could not be taken on writ of replevin, under G. L. c. 214, s 3(1), attaching creditor and attorney, for whom constable acted in storing and secreting the car, and who aided him in concealing car from owner, were liable, and decree was properly entered against them for return of car and for damages.

7. Sales k480(5)-Assessment of damages for fair value of use of automobile during period of detention held justified in equitable replevin suit (G. L. c. 214, s 3(1).

In suit by conditional vendor for equitable replevin of automobile under G. L. c. 214, s 3(1), evidence of fair value of use of motor vehicle during period of its detention justified trial court's assessment of damages for such use.

8. Sales k480(5)-Plaintiff suing for equitable replevin could not have damages for detention between time of assessment of damages below and disposition of defendant's appeal (G. L. c. 214, s 3(1).

Conditional vendor of automobile, suing for equitable replevin under G. L. c. 214, s 3(1), held not entitled to damages for fair value of use of motor vehicle for time elapsing between assessment of damages in superior court and disposition of defendant's appeal.A. P. Hardy, of Boston, for appellants.

A. H. Lewis, of Boston, for appellee.

SANDERSON, J.

This is a bill for equitable replevin of an automobile sold by the plaintiff to the defendant Rivkin under a conditional contract of sale in the form of a lease. Hurnanen v. Nicksa, 228 Mass. 346, 349, 117 N. E. 325;Russell v. Martin, 232 Mass. 379, 382, 122 N. E. 447;Giligian v. New England Truck Co. (Mass.) 163 N. E. 651. After breach of condition by Rivkin the automobile was seized by the defendant Bennett, as constable, under an execution issued in an action brought by the defendant Berkowitz against Rivkin and the Home Repairing & Remodelling Corporation, in which action the defendant Lewis was attorney for Berkowitz. The bill was taken for confessed as against the defendants Rivkin and Home Repairing & Remodelling Corporation, and as to them the bill was dismissed. The decree entered enjoined the defendants Berkowitz, Bennett and Lewis to deliver the automobile to the plaintiff, and awarded damages against them, from which they appealed.

The trial judge made no findings of fact except such as are necessarily involved in the entry of the final decree. His decision was based in part on oral testimony. W. B. Manuf. Co. v. Rubenstein, 236 Mass. 215, 128 N. E. 21, 11 A. L. R. 1283.

[1] The conditional contract of sale of the automobile provided for the payment of the purchase price by instalments, and Rivkin agreed, in...