McAvoy v. Wright

• Decision Date: 10 May 1884
• Citation: 137 Mass. 207
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Dennis S. McAvoy v. Luther A. Wright & others. Same v. George G. Drew

137 Mass. 207

Dennis S. McAvoy v. Luther A. Wright & others. Same v. George G. Drew

Supreme Court of Massachusetts

May 10, 1884

Suffolk. Two actions of tort for the conversion of a horse wagon, and other articles of personal property. The cases were tried together in the Superior Court, before Blodgett J., who allowed a bill of exceptions, in substance as follows:

It appeared that the defendant Drew, who was a constable of the city of Boston, on April 15, 1882, attached the property in question upon a writ in favor of the firm of Wright Brothers and James, the other defendants, and against one Frank J Dempsey. The plaintiff contended, and offered evidence tending to show, that said property was sold and delivered to him by Dempsey on January 19, 1882. The defendants denied that any such sale was made; and contended that, if made, it was without consideration, and was fraudulent as against Wright Brothers and James, who were then creditors of Dempsey.

Upon the question whether such alleged sale was fraudulent as against creditors, evidence was offered on both sides, and among other things, the plaintiff testified that after January 19, 1882, he kept the property in a stable hired by him from one William Peard, and paid rent to Peard therefor on March 1, 1882; and, against the defendants' objection, the plaintiff was allowed to testify that, after April 15, 1882, he paid rent to that date, and at the time of such payment took a receipt therefor, which receipt the plaintiff, against the defendants' objection, was permitted to introduce in evidence.

The defendant Drew testified in his own behalf, and as a witness for the other defendants; and, on cross-examination, the plaintiff was allowed to ask, the defendants objecting, what directions he received from the attorney of Wright Brothers and James as to attaching property on the writ against Dempsey, and the witness answered that he was instructed by said attorney to attach the property in suit.

The only evidence upon the question of liability of Wright Brothers and James was, that one of said firm agreed upon appraisers for the purpose of the sale of said horse upon the attachment and the instruction by the attorney as aforesaid, which was admitted against the defendants' objection.

Upon the question of damages, one James Dowd, a wheelwright, was called by the plaintiff, and testified that he built the wagon and sold it to Dempsey early in December, 1881; that he had dealt in wagons and knew their value; and that he did not see the wagon in question after he sold it to Dempsey. He was then, against the defendants' objection, allowed to testify as to the market value of the wagon at the time he sold it to Dempsey.

Dempsey was called as a witness by the plaintiff, and, on cross-examination, denied that he offered the horse for sale after January 19, 1882; and, a witness called by the defendants having testified that Dempsey did so offer the horse for sale, the defendants asked the judge to instruct the jury that such offer by Dempsey was evidence which would warrant them in finding that the alleged sale to the plaintiff was fraudulent. The judge declined to give this instruction, and instructed the jury that an offer by Dempsey to sell the horse as his property after January 19, 1882, unknown to the plaintiff, should be considered by them only as affecting Dempsey's credibility.

The defendants requested the judge to rule that the two actions could not be simultaneously maintained; that there was no evidence of conversion by the firm of Wright Brothers and James, nor by the individuals comprising such firm; and that there was no evidence of conversion by the defendant Drew. The judge declined so to...