Metcalf v. McLaughlin

• Decision Date: 28 February 1877
• Parties: Unie M. Metcalf v. Michael J. McLaughlin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 84

Unie M. Metcalf v. Michael J. McLaughlin

Supreme Court of Massachusetts

February 28, 1877

Argued November 14, 1876

Suffolk. Tort for the conversion of certain chattels.

At the trial in the Superior Court, before Rockwell, J., the plaintiff put in evidence a mortgage of the chattels given by Amelia Merrill to one Hall, and an assignment by Hall to her before the alleged conversion. The chattels, when this mortgage was given, were situated in house No. 400 Shawmut Avenue, Boston, and one of the provisions of the mortgage was that the mortgagor should not, except with the consent in writing of the grantee or his representatives, attempt to sell or to remove from said house on Shawmut Avenue the same or any part thereof.

On August 23 and 25, 1873, the defendant, and other persons employed by him, removed the mortgaged chattels from No. 400 Shawmut Avenue. The defendant was a teamster, and made the removal at the request of the mortgagor, who was in possession; and no consent in writing or otherwise had ever been given by the mortgagee or his assigns that the property might be removed. The husband of the plaintiff testified that at the time and place of the removal of the property, he, as her agent, disclosed to the defendant the title of the plaintiff under the mortgage, forbade the removal of the goods, and attempted to take possession of the mortgaged property by seizing hold of one piece, but was compelled by the superior force of the defendant's men to relinquish it; that the defendant said at the time, "I don't care for your mortgage; I know my business; I shall remove the goods;" that he removed them and delivered them to the mortgagor at No. 196 Shawmut Avenue; that the plaintiff was not informed at the time where the goods were to be removed to, and did not learn where they had been taken for several days; and that the plaintiff had never obtained the goods or any part of them. The evidence introduced by the defendant conflicted with some of the statements of this witness.

The defendant testified, among other things, that he was a teamster; that he was applied to by Mrs. Merrill to move her goods from No. 400 to No. 196 Shawmut Avenue; that while engaged in the moving, and after a part of the furniture was loaded upon his wagon, the witness Metcalf presented himself at the house and said he had a mortgage on the goods that he was moving, and forbade him to remove them; that the next day after suit was brought, Metcalf came to the witness at his stand and asked him where the goods were that he moved the day before, and he told him that they were at 196 Shawmut Avenue, and that if he had any claim on them he had better go there and make it; and that he had no interest in the goods and he, Metcalf, knew it.

The defendant also testified that Mrs. Merrill was in possession of the property, and gave him the keys to the house, and that he knew nothing of Metcalf's alleged mortgage till a part of the goods were loaded on his wagon; that all he did was to take the goods as a truckman, from one house to the other for Mrs. Merrill; that he never asserted any title to them but left them in the same condition that he took them; and that the houses were in plain sight of each other. It appeared that the plaintiff made no further attempt to follow the goods.

The judge, upon the evidence in the case, ruled, without objection, that the plaintiff was entitled to take the immediate possession of the property at the time of the removal; and, upon the question of conversion, the judge, at the request of the defendant, instructed the jury that the mere removal of the goods from one place to the other on the same street,...