Shaw v. Silloway
| Decision Date | 05 January 1888 |
| Citation | 14 N.E. 783,145 Mass. 503 |
| Parties | SHAW v. SILLOWAY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Amos Noyes, for plaintiff.
Reasons why demurrer cannot be sustained, are: The form of action comes under the head of trespass on the case at common law and hence, by Pub.St. c. 167, § 1, it is properly included under actions of tort. It has been held that an action of case will lie where a person or corporation fails to deliver goods or stock not acknowledged to be then the property of the person asking for it. Rex v. Bank, 2 Doug. 524; Gray v. Bank, 3 Mass. 364; Hussey v. Bank, 10 Pick. 415; Bush v. Canfield, 2 Conn. 487. The gist of plaintiff's complaint is that he has received neither money nor goods; and it would seem that he had made sufficient allegation of his right to the goods as security for his debt, and of his loss of the security by the failure to deliver on demand. All the circumstances of consideration for the agreement, and of a breach of the same, and of the damage suffered by plaintiff, are alleged, besides the general allegation or ad damnum in the writ. As to the exceptions. The evidence was admitted without objection at the trial, and its admissibility cannot now be objected to. Peterson v. Farnum, 121 Mass. 476. The defense of payment, or illegality, or recoupment, or set-off, etc., must be specially pleaded, and is not raised by a general denial. Granger v. Ilsley, 2 Gray, 521; Fogg v. Griffin, 2 Allen, 1; Parker v. Lowell, 11 Gray, 353; Bruce v. Mathews, 101 Mass. 64; Stanley v. McKinzer, 7 Lea, 454. If these propositions of law are sound, then it would seem that defendant's second request must be refused, and the evidence does maintain the cause of action in the second count. The statute of limitations in this class of contracts begins to run from the time of demand. Wood Lim. 256, 257; Brewster v. Hobart, 15 Pick. 307; Stanton v. Stanton, 37 Vt. 411; Branch v Dawson, 33 Minn. 399, 23 N.W. 552; Scott v. U.S., 18 Ct.Cl. 1; Ivey v. Owens, 28 Ala. 641; Stevens v. Adams, 45 Me. 611. As to the objection that the demand was not made in a reasonable time, a verdict or finding upon such a point should not be set aside, except in a perfectly clear and unprecedented case. See Stanton v. Stanton, supra; Jameson v. Jameson, 72 Mo. 640; French v. Merrill, 132 Mass. 527; Evans v. Hardeman, 15 Tex. 480. No absolute presumption of payment arises from taking a new note for an old one; that is a question of fact, rather than law, and has been found against defendant. 2 Pars.Cont. 137, note o; Bank v. Slemmons, 34 Ohio St. 142; Butts v. Dean, 2 Metc. 76; Machine Co. v. Brock, 113 Mass. 195. The fact that a presumption of payment would deprive the creditor taking the note of some substantial security, such as a mortgage, guaranty, or the like, has been held sufficient to rebut the presumption of payment by taking a new note. Lovell v. Williams, 125 Mass. 442; Butts v. Dean, 2 Metc. 76; Appleton v. Parker, 15 Gray, 175; Dodge v. Emerson, 131 Mass. 467.
William H. Moody, for defendant.
It is conceded that if the plaintiff's right to maintain an action on the contract of June 10, 1878, depended upon the contingency of a demand by the plaintiff on the defendant, the statute of limitation did not begin to run until the date of a reasonable demand. But the goods enumerated in the schedule were "consigned for sale" to the plaintiff, and their place of storage was designated. The plaintiff's right to a special property in them was complete. There was no provision that the defendant should retain the goods until a demand. The agreement to deliver on demand was inconsistent with the other provisions of the contract, was unnecessary, meaningless, and did not create any contingency upon which the plaintiff's right depended. The statute, therefore, began to run from the date of the contract. Assuming, however, that a demand was a condition precedent to the plaintiff's right of action, and that the statute ran from the date of the demand, still the demand (October, 1886,) was eight years and four months from the date of the contract, and was too late. Where a demand is a condition precedent to the right of action, the demand must ordinarily be made within six years from the date of the contract. Codman v. Rogers, 10 Pick. 112; Railroad Co. v. Byers, 32 Pa.St. 22; Morrison v. Mullin, 34 Pa.St. 12; Rhines v. Evans, 66 Pa.St. 195; Palmer v. Palmer, 36 Mich. 487; Stanton v. Stanton, 37 Vt. 411; Thrall v. Mead, 40 Vt. 540; Stafford v. Richardson, 15 Wend. 302. Where, however, the contract shows that the parties intend, or the subject-matter necessitates, a delay in the demand itself, the demand need not be made within six years. Emmons v. Hayward, 6 Cush. 501; Stanton v. Stanton, ubi supra. The exception suggested in Codman v. Rogers, ubi supra, does not apply to the case at bar. Here no cause for delay was shown. It is true that it has been found as a fact that the demand was within a reasonable time, but the whole evidence is reported, and it is submitted that there was no evidence to warrant such a finding. The debt, for which the goods were security, had been eight years due, and the goods themselves were not of a permanent nature. One is at a loss to know what fact was found by the court below to be "a cause of delay," or upon what ground it was found that the demand was within a reasonable time. It is impossible to reason satisfactorily on the proper construction of their obscure instrument. The only "contracts payable to Edward P. Shaw or to his order" or "contracts which said Shaw may hold" were two notes made subsequently to the date of the instrument, and on these notes the defendant heretofore has had final judgment. Both on the ground that the instrument did not purport to secure contracts afterwards made, or contracts extinguished by judgment, the defendant submits that the second and fifth requests should have been granted.
OPINION
The instrument upon which this action is brought is not clearly expressed, but its purpose and meaning seem to be reasonably plain. The defendant executed his promissory note for $224 to the plaintiff, and on the same day also executed and delivered to the plaintiff this instrument, reciting the receipt of $224 on his note, and consigning for sale to the plaintiff the personal property therein mentioned, as security for the payment of the note, and of all contracts due from him and payable to the plaintiff's order. The property in question consisted chiefly of a horse and vehicles; articles which would naturally be used by the person in possession of them. The instrument contained a promise to deliver this property to the plaintiff on demand. This shows that it was not, necessarily, to be delivered at once, and that it was contemplated that the defendant might remain in possession of it until a demand should be made. It must also have been understood that the defendant might himself sell part of the property, since the words "and the proceeds of all sales of merchandise herewith consigned" can only refer to sales by the defendant. This instrument did not amount to a mortgage. There are no words in it which import a transfer of the legal title to the plaintiff; and there are no words of defeasance. It has been held that a bill of parcels, which contains no words of defeasance, and which is intended merely as security, if accompanied by delivery, is at most only a pledge, and is not a mortgage. Thompson v. Dolliver, 132 Mass. 103; Walker v. Staples, 5 Allen, 34; Whitaker v. Sumner, 20 Pick. 399. But the instrument now before us does not purport to convey the title; it is merely a consignment for sale. If possession of the property had accompanied the delivery of the instrument, the transaction would have been a pledge. The fact that possession was retained by the defendant did not have the effect to make the instrument a mortgage. The instrument, therefore, is merely a power of sale, with an agreement to deliver the property on demand, or the proceeds, in case the property or any part of it should be sold by the defendant. Meanwhile he was to keep the possession until a demand by the plaintiff. It is an agreement to make a pledge as security for the demands referred to. This did not divest the defendant's title; it did not even create a lien. It would not authorize the plaintiff to take possession of the property without the defendant's consent. It was a mere executory agreement. The property might have been sold by the defendant, or attached upon a writ against him. The contract might or might not be enforceable in equity, according to the circumstances. Insurance Co. v. Olmsted, 33 Conn. 476; Beeman v. Lawton, 37 Me. 543.
When the defendant's note fell due, it was partly paid in cash, and new notes were given to the plaintiff for the unpaid balance. These have never been paid. The finding of the court necessarily implies that these notes cannot be deemed to have been taken in payment of the original note, in such a sense as to destroy the security of the defendant's agreement. But the new notes, as well as the original note, are now barred by the statute of limitations, and an action brought upon them was defeated, as we must infer, on that ground. And this was the state of things at the time of the plaintiff's demand, under the agreement. The question, therefore, is whether the action can be maintained upon the agreement, after the debts to be secured have become barred by the statute of limitations, and have been adjudged to be barred; or whether the agreement falls with the right to enforce the debt.
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