Mills v. Sullivan

• Decision Date: 11 February 1916
• Citation: 222 Mass. 587,111 N.E. 605
• Parties: MILLS, Deputy Sheriff, v. SULLIVAN, Constable.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 587

111 N.E. 605

MILLS, Deputy Sheriff,

v.SULLIVAN, Constable.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 11, 1916.

Exceptions from Superior Court, Bristol County; Charles F. Jenney, Judge.

Action for conversion by Edwin J. Mills, Deputy Sheriff, against Eugene S. Sullivan, Constable. Judgment for plaintiff for nominal damages, and plaintiff excepts. Exceptions sustained.

The plaintiffis a deputy sheriff of Bristol county and the defendant a civil constable of Fall River, in said county. In his capacity as deputy sheriff the plaintiff attached the goods in question as the property of one Frank Grossman by virtue of a writ in favor of Snell & Simpson against said Grossman, dated May 13, 1910. Thereafter said goods were taken from his possession by the defendant by virtue of a writ of replevin issued from the Second district court of Bristol in favor of the National Wholesale Grocery Company, a corporation of Massachusetts. This writ was never entered, but the said action of Snell & Simpson against said Grossman was duly entered and is now pending.

Agreed Statement of Facts.

The National Wholesale Grocery Company, Incorporated, a wholesale grocery corporation, did business with one Frank Grossman, a retail grocer. Grossman was indebted to the corporation in the sum of $200. On the 10th day of May, 1910, Grossman mortgaged his stock in trade and fixtures to the corporation to secure the indebtedness of $200. The value of the fixtures was $25. The value of the stock was $75. Subsequently, on the same day, Grossman, finding that it was not profitable for him to continue the business, released his equity of redemption to the mortgagee, as appears on the mortgage instrument, which is hereto annexed. The mortgage was never recorded. The mortgagee immediately took possession of the property under a claim of ownership, leaving Grossman in charge as its agent, under an instrument a copy of which is hereto annexed. No notice, such as is described in the Sales in Bulk Act, was given to any creditor. Thereafter Snell & Simpson, creditors of Frank Grossman, attached the personal property above described as the property of Grossman on a writ against Grossman, and the plaintiff, a deputy sheriff, took possession of the same under said writ. A demand was made on Mills for said property by the grocery corporation. The defendant, a constable, under a replevin writ which was never entered, in which the grocery corporation was the plaintiff and Mills the defendant, took possession of the said property, and turned the same over to the corporation. No replevin bond was ever executed. All proper inferences of fact may be drawn, except as to the purpose with which the mortgage and release aforesaid were executed.

F. A. Pease, of Fall River, for plaintiff.

D. R. Radovsky, of Fall River, for defendant.

PIERCE, J.

[2] The plaintiff by virtue of his writ had actual possession of and a special property in the goods when they were taken from him by the defendant. Ladd v. North, 2 Mass. 514, 518. Save as justified by law the seizure by the defendant was a trespass and he became a trespasser ab initio upon his failure to enter in court the replevin writ. Hanly v. Davis, 166 Mass. 1, 43 N. E. 523.

Presumptively the plaintiff became entitled to recover against the defendant in an action of conversion the full value of the goods. Hanly v. Davis, supra. The goods had been mortgaged by the defendant in the writ by virtue of which the plaintiff, in his capacity of deputy sheriff, had attached them, to a...