Morrin v. Manning

• Decision Date: 24 February 1910
• Parties: MORRIN v. MANNING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 205

91 N.E. 308

MORRIN v. MANNING.

Supreme Judicial Court of Massachusetts, Middlesex.

February 24, 1910

COUNSEL

John Louis Sheehan and James S. Cannon, for plaintiff.

Francis J. Carney, for defendant.

OPINION

HAMMOND J.

1. Upon the evidence the jury might properly have found that even if the plaintiff had consented that the defendant should have the keys of the restaurant in his possession for the preservation of the attachment, he consented only upon the condition that the restaurant should be open for business at its usual hours; that the defendant in view of the failure of the waitresses to pass over to him the money received by them from the customers, and of the other circumstances in the case, had concluded to stop the business and entirely exclude the plaintiff from the restaurant, even during business hours; that in execution of that purpose he procured a padlock and some staples and with them locked the 'entrance door,' and further posted upon the door the notice that the place was closed by him as constable; and that in this way the plaintiff was excluded from the restaurant for several days against his own will. The jury were instructed in substance that the plaintiff could not recover if he consented to being excluded. Their verdict shows that they found he was excluded from the store without his consent. In thus excluding the plaintiff the defendant exceeded his authority under the writ and became a trespasser ab initio. Walsh v. Bacon, 194 Mass. 317, 80 N.E 465, 120 Am. St. Rep. 556.

2. Being without justification for the seizure of the articles of personal property, he was liable in conversion for the property he seized. It is urged, however, by the defendant that, even if trover will lie for the conversion of the personal property named in the first count, it will not lie for the conversion of the money in the second count; that the taking and keeping of the money by the defendant under the circumstances created only a general indebtedness from him to the plaintiff, and that trover will not lie for a general indebtedness.

The return made by the defendant is not set out in full in the record before us, but it is stated that it appears from the return that after deducting from the money which the defendant received the money which he had paid out there was left in his hands $24.37. It is to be assumed that he originally took the money by attachment under his writ. Having by subsequent misconduct become a trespasser ab initio, he no longer had any right to its possession. It is as if he had wrongfully taken it in the first place to his own use. It is elementary that for the conversion of money either in the form of specie or notes, trover will lie.

So far as respects the third count, which was in trespass, suffice it to say that the evidence was ample to support it.

The first three requests therefore were rightfully refused. As to the second set of requests, the first and second were rightly refused because they single out only one of several circumstances bearing upon the same issue and ask for its effect when considered apart from the others; the fourth and fifth were covered, so far as sound in law, by the instruction given to the effect that if the plaintiff consented to being excluded from the store he could not recover; the sixth was rightly refused because inconsistent with a legitimate view of the evidence, and the same may be said of the tenth and eleventh.

3. The memoranda produced by the plaintiff and taken by the defendant, and with reference to which the defendant cross-examined the plaintiff, were properly admitted in evidence. Even if the rule making a paper admissible which is called for by one party, is produced by the other and is examined by the party calling for it is not applicable, there is still a reason for the admission of the memoranda in this case. In a certain sense they were a part of the cross-examination, and the presiding justice may well have thought that they should be admitted not as evidence of the...