Robinson v. Bird

• Citation: 158 Mass. 357,33 N.E. 391
• Parties: ROBINSON et al. v. BIRD.
• Decision Date: 03 March 1893
• Court: United States State Supreme Judicial Court of Massachusetts

158 Mass. 357

33 N.E. 391

ROBINSON et al.

v.BIRD.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1893.

Appeal from superior court, Suffolk county.

Action by Charles H. Robinson and others against Lewis J. Bird to recover for the conversion of certain household furniture. From a judgment for plaintiffs, defendant appeals. Affirmed.

The case was tried on an agreed statement of facts, substantially as follows:

It is agreed that the plaintiffs are furniture dealers at Nos. 1, 2, and 3 Dock square, Boston, Mass.; that the defendant is an auctioneer having a place of business on Bromfield street in said Boston; that the plaintiffs, on the 9th day of February, 1886, sold to one Linda Bryant a quantity of furniture under the terms of a written agreement, a copy of which is hereto annexed, marked “A,” which agreement is dated February 9, 1886; that the said furniture was delivered to the said Linda Bryant at Allston, Mass., on February 9 and 10, 1886; that said furniture was afterwards removed, with the consent of the plaintiffs, to the Oakland House, Oak square, Brighton, where the property was seen by the collectors of the plaintiffs; that the said property was afterwards removed, with the consent of the plaintiffs, to the Oregon House, Washington street, Boston, where it was also seen by the collectors and representatives of the plaintiffs; that on September 22, 1886, the said Linda Bryant mortgaged to one John Stetson, of Boston, for the sum of $300, all the property contained in the Oakland House, Oak square, Brighton, Mass., which mortgage included and covered the said furniture claimed by the plaintiffs, besides other things set forth in said mortgage, and which was duly recorded in the clerk's office of Boston aforesaid; that in August, 1890, the said Stetson, the mortgagee, the said mortgage being overdue, and part of the interest and the entire principal being unpaid and due, duly foreclosed and took possession, through his agent, of all the said property of the said Oregon House, including goods received by said Linda Bryant from said plaintiffs under said agreement, and carried the same to the public auction rooms of the defendant, Lewis J. Bird, on Bromfield street, in Boston; that said Stetson took this mortgage, and took possession and carried said property to the said Bird, defendant, as an auctioneer, and said Stetson received from said Bird the proceeds from the sale of said property, in ignorance of any interest of the plaintiffs in the same, and ignorant of the fact that any part of the property covered by said mortgage was purchased of the plaintiffs under the terms set forth in said written agreement; that said Bird, the defendant, acting in the capacity of auctioneer, sold the said property at his said auction rooms, and paid over the proceeds of the same, less his commission, to the said Stetson, in ignorance of any claim or rights of the plaintiffs, and in ignorance of the written agreement; that the said Bird acted in good faith throughout the entire transaction, and received the first information of any claim of the plaintiffs after the goods were sold and passed out of his possession, and the proceeds had been paid over to the said Stetson; that under said written agreement the amount to be paid by said Linda Bryant to the plaintiffs was $30 per month; that the plaintiffs never enforced the return of the said goods or retook possession of the same under the power expressed in said written agreement, never enforced any demand whatever upon either Linda Bryant, the mortgagee, or the defendant, for the return of said goods or the amount due on said written agreement, except that the plaintiffs did, through their agents and collectors, constantly endeavor to collect the amounts due from said Linda Bryant by repeated demands upon her. The plaintiffs were ignorant and had no actual notice of the said Stetson mortgage until discovered by them after the goods had been sold by the defendant, and after he had turned the proceeds over to the said Stetson. Said Linda Bryant disappeared just prior to the date when said Stetson took possession of the property under his...