Philbrook v. Eaton

• Decision Date: 02 March 1883
• Citation: 134 Mass. 398
• Parties: Moses W. Philbrook, administrator, v. John Eaton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 398

Moses W. Philbrook, administrator, v. John Eaton

Supreme Court of Massachusetts

March 2, 1883

Argued January 29, 1883

Suffolk. Tort, by the administrator of the estate of John D Philbrook, for the conversion of certain household furniture. Answer, a general denial. Trial in the Superior Court without a jury, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:

The plaintiff, as administrator, made a demand upon the defendant for said furniture before bringing this action, but the defendant did not deliver it, having previously, in July 1879, sold it to one Sawyer. The defendant was allowed to put in evidence, subject to the plaintiff's exception, that he borrowed of the plaintiff's intestate $ 250, and gave as security therefor a mortgage of a parcel of real estate in Beverly, and, as additional security, a bill of sale of said furniture, dated January 17, 1874, in which the consideration was expressed to be $ 250, the receipt of which was acknowledged; that no money was paid except the sum of $ 250 so lent; that the intestate never took possession of said furniture, but it had always remained in the possession of the defendant until he sold it to Sawyer, as above stated. The bill of sale was not recorded. There was no evidence of value except the bill of sale, and the fact of the sale of the furniture to Sawyer.

The defendant asked the judge to rule as follows: "1. If the instrument relied on was a bill of sale, it was without consideration, and no title passed to the vendee. 2. The goods named in the bill of sale were pledged, and, the goods never having been in possession of the pledgee, no title passed, and this action cannot be maintained. 3. An administrator is not a party so as to come within the Gen Sts. c. 151, § 2. 4. The amount recoverable in an action for conversion is the value of the goods at the time they were converted. No value having been proven, and the existence of the goods not having been proven, nothing can be recovered in this action. 5. This action cannot be maintained against the defendant, as at the time of the alleged conversion he had not possession, nor any control over or interest in the goods."

The judge declined so to rule, but ruled that, as between the original parties, the action could be maintained, whether the goods were mortgaged, pledged or sold, and that, on the evidence of the consideration of the amount named in the bill of sale, and the nature of the goods, he found the damages to be $ 75. The defendant alleged exceptions.

Exceptions overruled.

C. C Barton & A. D. McClellan, for the defendant.

J. F. Wiggin & B. M. Fernald, for the plaintiff.

Colburn J. Field & W. Allen, JJ., absent.

OPINION

Colburn, J.

The written instrument under which the plaintiff claims is a formal bill of sale, not a bill of parcels, and on its face purports to be the evidence of an absolute sale of the property therein described by the defendant to the plaintiff's intestate, in consideration of $ 250, which the defendant acknowledges that he received.

The plaintiff, who by operation of law represents the personal property and rights of his intestate, sustains the same relation to the defendant, and to the property in controversy, that his intestate sustained before his decease. No question as to the right of creditors or purchasers without notice is raised.

As between the plaintiff and defendant, no delivery of...