Row v. Home Sav. Bank

• Decision Date: 17 September 1940
• Citation: 306 Mass. 522,29 N.E.2d 552
• Parties: ROW v. HOME SAV. BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 522

29 N.E.2d 552

ROW

v.HOME SAV. BANK.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 17, 1940.

Exceptions from Superior Court, Suffolk County; Donnelly, Judge.

Action by Amy P. Row against the Home Savings Bank for conversion and for gross negligence of defendant which, by its agent, took possession of vacant building upon foreclosure of mortgage and caused personalty belonging to plaintiff to be removed from building and thrown away. The judge, sitting without a jury, found for defendant, and plaintiff brings exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, QUA, and DOLAN, JJ.

G. H. Hull, of Boston, for plaintiff.

M. L. Lourie, of Boston, for defendant

LUMMUS, Justice.

The defendant held a mortgage upon a building on Commonwealth Avenue in Boston. The Greater Council for Campfire Girls of Greater Boston occupied the building. The plaintiff hired a room from the council. After her occupancy of the room ceased in June, 1932, she moved out most of her belongings, but with the consent of the Council she continued to use the building as a place to write during the summer of that year, although it was then closed and unoccupied. She had a key to the building. In October, 1932, the Council moved out its office furniture, and the water was turned off. After June, 1932, the plaintiff kept two trunks and a suitcase in the building. The trunks were ‘old and useful only as repositories.’ One of the trunks was left open, and the other was unlocked. The trunks and the suitcase were filled with a medley of things: Manuscripts; family photographs, letters and documents; autographs; photographic plates and films; a seventeenth century Japanese lacquered escritoire; two antique sewing boxes, one of them out of repair; some clothing, linen and embroidery; a carved ivory tusk; some books and china; some silver spoons and silver plated ware; a crayon portrait; and some curiousities from New Zealand.

In May, 1933, the plaintiff was told by the Council that it was abandoning the building and that ‘everything was going out of the building.’ In June, 1933, the Council moved out the last of its belongings. When the plaintiff had finished writing in the building in the summer of 1932, she intended to come back, pack her goods, and lock her trunks. She never did so. She did not come back until about July 1, 1933, and then she left her property in the same condition in which it had been. On her return about August 1, 1933, she could not enter the building, for the defendant had changed the lock on the building. The defendant mortgagee by its agent had entered upon the property on July 13, 1933, had foreclosed its mortgage, and had caused the ‘debris,’ including the property of the plaintiff, to be removed from the building and thrown away.

The declaration is in two counts, the first for conversion, and the second for gross negligence. The judge, sitting without a jury, found for the defendant. The plaintiff alleged exceptions.

The judge found as follows: ‘I find that from the appearance of the property he [the agent of the defendant] was justified in assuming that the property was of no value and had been abandoned and that there was no negligence on his part in making this assumption. I find also that the plaintiff was negligent in failing properly to protect or remove her property during the period from May to July, 1933, when she knew that the defendant was about to come into possession of the property on Commonwealth Avenue. Due care on her part would require her either to remove the property or to communicate her desire to retain the property to the mortgagee.’

The plaintiff presented fifteen requests for rulings. The judge did not give or refuse any of them specifically, but attempted to dispose of them by the following statement: ‘Such of the plaintiff's requests as are in accordance herewith [i. e. with the findings already quoted] are given. Those not in accordance herewith are either immaterial or are refused.’ On this record we cannot know from this cryptic statement which requests were granted or which were refused. Meehan v. North Adams Savings Bank, 302 Mass. 357, 362 365-366,19 N.E.2d 299. We must treat all the requests as refused. See John Hetherington & Sons, Ltd., v. William Firth Co., 210 Mass. 8, 18, 19, 95 N.E. 961.

The judge did not find that the plaintiff intended to abandon the property. He found merely that her acts gave the defendant's agent reason to believe that the property had been abandoned. That is not enough to divest the plaintiff of her title. An actual intent to abandon must be shown. Wilson v. Colorado Mining Co., 8 Cir., 227 F. 721, 725;Collins v. Lewis, 111 Conn. 299, 303, 149 A. 668;Duryea v. Elkhorn Coal & Coke Corp., 123 Me. 482, 486, 124 A. 206;Coulombe v. Gross, 84 N.H. 212, 215, 148 A. 582. See, also, Welch v. McNeil, 214 Mass. 402, 406, 101 N.E. 985. The same rule governs the abandonment of easements, trademarks, and other property capable of abandonment, Jamaica Pond Aqueduct Corp. v. Chandler, 121 Mass. 3, 4;Willard v. Stone, 253 Mass. 555, 561, 562, 149 N.E. 681;Dubinsky v. Cama, 261 Mass. 47, 57, 158 N.E. 321;Les v. Alibozek, 269 Mass. 153, 168 N.E. 919, 66 A.L.R. 1094;Dyer v. Siano, 298 Mass. 537, 541,11 N.E.2d 45;Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31, 21 S.Ct. 7, 45 L.Ed. 60. The plaintiff did not lose, nor did the defendant gain, title by abandonment.

It is no defence to an action for conversion that a defendant who exercised dominion over the goods did so in good faith reasonably being mistaken in thinking the facts to be such as would give him a legal right to the goods, Higginson v. York, 5 Mass. 341;Gilmore v. Newton, 9 Allen 171,85 Am.Dec. 749;McPartland v. Read, 11 Allen 231;Hills v. Snell, 104 Mass. 173, 177,6 Am.Rep. 216;Robinson v. Bird, 158 Mass. 357, 360, 33 N.E. 391,35 Am.St.Rep. 495;Oliver Ditson Co. v. Bates, 181 Mass. 455, 63 N.E. 908,57 L.R.A. 289, 92 Am.St.Rep. 424;Orcutt v. Gast, 231 Mass. 305, 120 N.E. 855;Smith v. Colby, 67 Me. 169;Morrill v. Moulton, 40 Vt. 242;Ryan v. Chown, 160 Mich. 204, 125 N.W. 46,136 Am.St.Rep. 433. The exercise of due care does not excuse a conversion. Guttentag v. Huntley, 245 Mass. 212, 215, 139 N.E. 501. Neither is contributory negligence of the plaintiff any defence to an action for conversion. Varney v. Curtis, 213 Mass. 309, 312, 100 N.E. 650, L.R.A.1916A, 629, Ann.Cas.1914A, 340;Somerville National Bank v. Hornblower, 293 Mass. 363, 369, 370, 199 N.E. 918, 104 A.L.R. 1107;Platt v. Tuttle, 23 Conn. 233;Pease v. Smith, 61 N.Y. 477. The cases where a defendant who has received goods from one who without right has assumed dominion...