Moors v. Wyman

Decision Date09 January 1888
Citation146 Mass. 60,15 N.E. 104
PartiesMOORS v. WYMAN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

R.M. Morse, Jr., and Morton & Hamlin, for plaintiff.

Upon the facts as they existed when the bill was brought, (which have been changed by Wyman's action subsequent thereto only so far as to reduce the amount of plaintiff's claims,) the plaintiff, it is submitted, can maintain this bill for an account, and for the delivery to him of his security, or for the application of the proceeds of the same to the payment of his claims. The plaintiff was the owner of the letter of credit hides. As such, he might trust them to others. He might give them out of his hands in any form, and his right of possession would remain. De Wolf v Gardner, 12 Cush. 19; Bank v. Bayley, 115 Mass 228; Libby v. Ingalls, 124 Mass. 503; Moors v Kidder, 106 N.Y. 32; 12 N.E. 818; Bank v Logan, 74 N.Y. 568; Dows v. Bank, 91 U.S. 618. Even if the court should not adopt this view of plaintiff's rights, the securities held by plaintiff had the qualities both of a mortgage and of a pledge. Casey v. Cavaroc, 96 U.S. 475. Even if plaintiff's rights were simply those of pledge, he did not lose them either by allowing the hides to go to the tanneries, or by permitting Wyman to sell some of them under the agreements. Thacher v. Moors, 134 Mass. 156; Kellogg v. Tompson, 142 Mass. 76, 6 N.E. 860; Way v. Davidson, 12 Gray, 465; Macomber v. Parker, 14 Pick. 497; Jones v. Baldwin, 12 Pick. 315.

The bill may be maintained for an account, by reason of the fiduciary relation of Wyman to the plaintiff. Pratt v. Tuttle, 136 Mass. 233; Hospital v. Assurance Co., 4 Gray, 227; Hallett v. Cumston, 110 Mass. 32; Ryal v. Roberts, Barnard. 38; McKenzie v. Johnston, 4 Madd. 373; Makepeace v. Rogers, 4 De Gex, J. & S. 649; Bierbower's Appeal, 107 Pa.St. 14; Conyngham's Appeal, 57 Pa.St. 474. Plaintiff may also maintain a bill for an account by reason of the complicated character of the account. Railroad Co. v. Nixon, 1 Lt.L.Cas. 111; Railway Co. v. Brogden, 3 Macn. & G. 7; Pierce v. Assurance Co., 145 Mass. 56, 12 N.E. 858; Shepard v. Brown, 4 Giff. 208; Edwards v. Baldwin, Id. 613; Railway Co. v. Railway Co., L.R. 8 Eq. 231; Dock Co. v. Board, L.R. 11 Eq. 254.

The bill may be maintained also for the recovery of property which could not be replevied, or which, if replevied, could be taken only on a large number of suits in various jurisdictions. The hides in the vats could not be replevied. Bond v. Ward, 7 Mass. 123. The plaintiff had no knowledge as to the situation of any of the property at the time when the bill was brought. The fact that he had known of the marks upon the different lots several months before would not have enabled him to find them so as to replevy them. Gibbens v. Peeler, 8 Pick. 258. Bill in equity was maintained for promissory notes which had been filed in court. Sears v. Carrier, 4 Allen, 339. For a deed which defendant refused to surrender. Pierce v. Lamson, 5 Allen, 60. But even if plaintiff could have obtained some of his security on writs of replevin, he would have been compelled to bring a number of suits in different jurisdictions. This court, it is submitted, will not send a citizen of this state into other states to pursue the doubtful remedy of a multiplicity of actions against another citizen of this state, when the whole controversy can be determined in one suit in equity in this jurisdiction. See Parker v. Garrison, 61 Ill. 250.

It is not an answer to the plaintiff's claim to say that he might have sued Wyman at law for the money collected, and not paid over, or that he might have brought replevin at trover for the goods, or some of them. These remedies were not adequate. They would have given him only partial relief. The only adequate remedy was a proceeding in equity in which Wyman could be held to account for all the plaintiff's property, or all the Shaws' property on which plaintiff had a lien, and ordered either to pay the debt due the plaintiff or to give plaintiff the securities, from the proceeds of which plaintiff could pay himself. Holden v. Hoyt, 134 Mass. 181; Boyce's Exr's v. Grundy, 3 Pet. 210.

As to defendant Wyman's exceptions. Neither the Bank of Montreal, nor Morton, Rose & Co., were necessary parties to the suit. They did not hold the title or right to the possession of any of the property, and they had no contract with or relation to Wyman. A mortgagee or pledgee is entitled to charge reasonable compensation for his services in selling the security. Varnum v. Meserve, 8 Allen, 161. Upon similar grounds, a mortgagee in possession is entitled to commissions on rents received. Gibson v. Crehore, 5 Pick. 146; Gerrish v. Black, 104 Mass. 400; Montague v. Railroad, 124 Mass. 247; Adams v. Brown, 7 Cush. 220. The master properly declined to allow Wyman to deduct from the value of the collateral the amount of his commission for selling it. These sales were made without authority, and in defiance of plaintiff's rights. There was no express contract to pay for his services, and none can be implied under the circumstances.

John C. Lane, for defendants Thaxter Shaw and Fayette and Brackley Shaw.

It seems that in accordance with the practice in this court, the question whether and what alterations should be made in the master's report will be heard by the court, and the master's report amended under an order of the court without giving the case back to the master for a rehearing. Aldr.Eq.Pl. & Pr. 153. And even if referred back to the master for correction, this may be done by an order pointing out the particulars in which the report is to be corrected, and without permitting further evidence to be introduced, or arguments had before the master. Heywood v. Miner, 102 Mass. 466. The report of a master on questions of fact referred to him, depending upon conflicting evidence, is not conclusive. Drew v. Beard, 107 Mass. 64. The pledge of letter of credit hides was lost. To render a pledge valid as a security, there must be not only a delivery to the pledgee, but also continued possession thereof by him. If he relinquish possession, the pledge no longer exists. Bonsey v. Amee, 8 Pick. 238; Kimball v. Hildreth, 8 Allen, 167; Homes v. Crane, 2 Pick. 610. See, also, Walker v. Staples, 5 Allen, 34; Whittaker v. Sumner, 20 Pick. 399. Jones, Pledges, §§ 1, 4, 23, 40; Thompson v. Dolliver, 132 Mass. 103. A pledgeor in possession can give a good title to a bona fide purchaser. Jones, Pledges, § 47, and cases cited. Way v. Davidson, 12 Gray, 467; Bodenhammer v. Newsom, 5 Jones, (N.C.) 107; Martin v. Reid, 11 C.B. (N.S.) 730; Macomber v. Parker, 14 Pick. 507; Kimball v. Hildreth, supra; Thayer v. Dwight, 104 Mass. 257; Black v. Bogert, 65 N.Y. 601. That the lien created by a pledge can be maintained only by a continued possession of the property, see Collins v. Buck, 63 Me. 459; Beeman v. Lawton, 37 Me. 544; Day v. Swift, 48 Me. 368; Eastman v. Avery, 23 Me. 248; Mosher v. Smith, 67 Me. 172. Also, Shaw v. Wilshire, 65 Me. 485. For a case in which it was attempted that the property pledged should be held as agent for the pledgeor, see Casey v. Cavaroc, 96 U.S. 467; Thacher v. Moors, 134 Mass. 156.

Moors' agency for the bank of Montreal: In this exception it was claimed that in the transactions as to letters of credit of the Bank of Montreal, and hides imported under the same, Moors was merely an agent for the bank. The effect of the original contracts between F. Shaw & Bros., of Boston, and the Bank of Montreal cannot be varied by other evidence. This is so well-established a principle of law that it seems hardly necessary to cite cases to that effect; but see Black v. Bachelder, 120 Mass. 171; Myrick v. Dame, 9 Cush. 248; Baldwin v. Dow, 130 Mass. 416; McFarland v. Railroad Corp., 115 Mass. 63; Atwood v. Cobb, 16 Pick. 231; Heywood v. Perrin, 10 Pick. 228. A bill of lading, even when in terms running to order, is not negotiable like a bill of exchange, but a symbol or representative of the goods themselves; and the rights arising out of the transfer of a bill of lading, correspond, not to those arising out of the indorsement of a negotiable promise for the payment of money, but to those arising out of a delivery of the property itself under similar circumstances. Stollenwerck v. Thacher, 115 Mass. 224. In the present case, therefore, the possession of the bills of lading by Moors, in his own name, was equivalent to the possession of the goods. See Brown v. Babcock, 3 Mass. 29. "Bills of lading, though prima facie evidence of absolute property in him to whom they are indorsed, bona fide, and for valuable consideration, are, nevertheless, capable of being explained." Low v. De Wolf, 8 Pick. 107. See De Wolf v. Gardner, 12 Cush. 26. The possession of an agent does not give him authority to deal with personal property as the principal might. Nickerson v. Darrow, 5 Allen, 419. The transfer of property by such agent, by way of pledge for his own debt, passed no title, because the absolute legal title was not in him, nor within his authority to sell, because not a sale, but a pledge. Bank v. Gardner, 15 Gray, 374. If a bill of lading is indorsed in blank, and delivered by the owner to his agent for a special purpose, a person getting possession of it, with the agent's assent, but not the owner's, acquires no title to the goods as against the owner. Stollenwerck v. Thacher, supra. The consignee named in the bill of lading does acquire title from the mere fact that he is so named. Pratt v. Parkman, 24 Pick. 42; Bank v. Crocker, 111 Mass. 163; Sloan v. Merrill, 135 Mass. 17; Jones, Pledges, §§ 229, 230.

Effect on attachments: The defendants contend that the plaintiff, at the date of his bill, was not and is not entitled to equitable relief in...

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