Phillips v. Shackford

• Decision Date: 02 October 1899
• Citation: 21 R.I. 422,44 A. 306
• Parties: PHILLIPS v. SHACKFORD.
• Court: Rhode Island Supreme Court

44 A. 306

21 R.I. 422

PHILLIPS

v. SHACKFORD.

Supreme Court of Rhode Island.

Oct. 2, 1899.

Action by Ray J. Phillips against Alphonse Shackford. Petition by plaintiff for new trial, after verdict for defendant. Denied.

Charles E. Salisbury, for plaintiff.

Miller & Carroll, for defendant.

TILLINGHAST, J. The facts in this case, in so far as they are pertinent to the questions raised by the exceptions, are as follows, viz.: On July 13, 1895, the defendant executed and delivered to the plaintiff a chattel mortgage of the property in question to secure the payment of a certain promissory note for $53.15, of even date therewith, payable in one month. The mortgage was not recorded, and the defendant retained possession of the property. On the 28th day of October, 1895, a creditor of the defendant placed an attachment on the property, whereupon the defendant made a general assignment, under the statute, for the benefit of his creditors. The attachment was then discontinued, and the assignee took possession of the property, and sold the same under the assignment. After the assignment was made, the plaintiff made demand upon the defendant for the property covered by his mortgage, which being refused, he commenced this action of trover to recover damages for the alleged conversion thereof. At the trial of the case in the common pleas division the plaintiff requested the court to charge the jury "that, if they find the defendant was in possession of the property at the time the plaintiff made a demand upon him for it, and he refused to let him have it, the plaintiff is entitled to recover." The court granted the request, with the qualification that, if the defendant was merely holding the property as agent or custodian for the assignee, the latter having previously taken possession thereof under the assignment, it was not in the possession and control of the defendant, within the meaning of said request. The plaintiff also requested the court to charge the jury "that, if they find the plaintiff made a demand upon the defendant for the property described in the mortgage, and the defendant refused to let him have it, told him he could not have it, that that amounts to conversion, the plaintiff being entitled to recover." To this request the court replied that, if the demand was made before the assignment, then the action would lie, but that, if it was not made until after the assignment, it would not lie, except for such property as was not covered by the attachment. To these refusals to charge as requested the plaintiff duly...