Storms v. Smith

• Decision Date: 10 May 1884
• Citation: 137 Mass. 201
• Parties: Lucretia A. Storms, administratrix, v. Frederick B. Smith
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 201

Lucretia A. Storms, administratrix, v. Frederick B. Smith

Supreme Court of Massachusetts

May 10, 1884

Suffolk. Tort, for the conversion of certain household goods. Trial in the Superior Court, before Pitman, J., who reported the case for the consideration of this court, in substance as follows:

One Morrill, on July 31, 1874, made a mortgage of the property in suit, which was then at 224 Shawmut Avenue, in Boston, to his father-in-law, William R. Storms, the plaintiff's intestate, to secure the payment of his promissory note for $ 500, payable in one year; this mortgage was duly recorded. Morrill at that time occupied two rooms in the house, and the property remained there until September 26, 1877, when he was suddenly compelled to remove therefrom, and had no place in which to store the goods. The defendant was at that time engaged in the business of piano and furniture moving, and Morrill employed him to move the goods. On the afternoon of the same day, the defendant placed the goods on two wagons where, at the request of Morrill, they remained until six o'clock in the evening of that day, when Morrill, not being able to find a suitable place in which to store the goods, requested the defendant to store them, and agreed to pay him two dollars per load for each month or fraction of a month during which they should be so stored. Thereupon the defendant stored the goods in a room, as requested by Morrill, and continued to store them in different places in Boston, at Morrill's request, until June 30, 1880, when one Sherman came to the defendant's house, and exhibiting said mortgage and a power of attorney from Storms declared that he had come to foreclose the mortgage. This was the first notice the defendant had that there was a mortgage on said goods, and he claimed the right to retain them, on the ground that he had a lien upon them for carriage and storage. Sherman thereupon proceeded to take away a portion of the goods, before the defendant could interfere to prevent any further removal.

On June 30, 1880, there was due the defendant for the moving and storage of said goods a balance of $ 121 ($ 20 having been previously paid the defendant by Morrill), and otherwise no tender was ever made to the defendant by any one either in whole or part satisfaction of his demand. It was proved that Storms had been informed that the goods had been removed from Shawmut Avenue, and stored by the defendant, about two months after the removal; and there was no evidence of dissent or disapproval on the part of Storms. The removal was a compulsory one, and the storing was a necessity to prevent the goods from exposure to loss and damage, which might result from their being put out and left on the sidewalk.

Upon the foregoing facts, the judge ruled that this action could be maintained; and ordered a verdict for the plaintiff. If the ruling was correct, judgment was to be entered on the verdict; otherwise, the verdict to be set aside, and judgment entered for the defendant.

Judgment on the verdict.

R. W. Shea, for the defendant.

N. B. Bryant, for the plaintiff.

Holmes, J. Devens & Colburn, JJ., absent.

OPINION

Holmes, J.

The mortgagor of the chattels was personally liable to the defendant for their storage, and he could not subject the mortgagee's interest to a lien in support of his debt without the mortgagee's authority. The mortgagee had...