Terrien v. Joseph.

• Court: Rhode Island Supreme Court
• Writing for the Court: CAPOTOSTO, Justice.
• Citation: Terrien v. Joseph., 73 R.I. 112, 53 A.2d 923 (R.I. 1947)
• Decision Date: 03 July 1947
• Docket Number: No. 8842.,8842.
• Parties: TERRIEN v. JOSEPH.

53 A.2d 923

TERRIEN

v.JOSEPH.

No. 8842.

Supreme Court of Rhode Island.

July 3, 1947.

Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Action of trover by Ernest Terrien against John Joseph for alleged conversion of certain garage equipment. The case was tried in superior court before a justice sitting without a jury. The justice gave a decision for the plaintiff and the case came before the Supreme Court on defendant's exceptions.

Exceptions overruled and case remitted to superior court for entry of judgment on the decision.

Fergus J. McOsker, of Providence, for plaintiff.

Frank W. Golemba, of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action of trover for the alleged conversion of certain garage equipment. The case was tried in the superior court before a justice thereof, sitting without a jury. At the conclusion of all the evidence, he gave a decision for the plaintiff in the sum of $531.88. The case is before us on defendant's exceptions to that decision.

It appears in evidence that in or about August, 1945, the plaintiff equipped a garage in Seekonk, Massachusetts, for the repair of automobiles; that all the equipment was new; and that he then ran the place as an automobile repair shop under the name of State Line Garage. Shortly thereafter he sold the personal property and business to Harry Norman for $2,000. He received from Norman $1,500 in cash and a note, dated September 22, 1945, for $500, payable in three months, which was secured by a chattel mortgage of even date covering all the personal property in the garage. The mortgage provided that the personal property therein mentioned was not to be removed from the described premises, except in the ordinary course of trade, without the ‘previous written assent’ of the mortgagee. The note not having been paid at maturity, the plaintiff, on or about December 22, 1945, went to the garage to see Norman about the matter and found neither him nor the equipment at that place.

Investigation led to this defendant as the person who was in possession of the property covered by the mortgage. Subsequently, the plaintiff and the defendant, both represented by counsel, appeared at an informal hearing before a judge in Taunton, Massachusetts. At that hearing, according to the plaintiff, the defendant was confronted with the mortgage and also with a list of the items which the plaintiff claimed were covered by the mortgage. The defendant then, according to the plaintiff, admitted that he had bought those items from Norman for $150 and that he had stored them in his morther's garage in East Providence in this state.

At the trial of this case the defendant admitted that he had been shown the mortgage at the hearing in Taunton, but stated that he did not remember whether he had also been shown the list of items as claimed by the plaintiff. In any event, he testified that he had not received from Norman many of the items on the plaintiff's list. As to what he did with the items that he bought from Norman, the defendant testified as follows: ‘Q. Didn't you, in the presence of the Judge, admit that this equipment was at your mother's home on Taunton Avenue, East Providence? A. What would it be doing there? I have a garage.’ However, he did not specify where his garage was located, nor did he deny that the items he bought from Norman were in his possession at the time of the hearing in Taunton.

Jebie C. Butler, a sister of the defendant and a witness in his behalf, testified that, on or about December 22, 1945, she was present when her brother bought some garage equipment from Norman and that it was ‘moved over to my garage.’ This witness, who testified in the absence of the defendant, stated that she lived in East Providence but she did not specify where her garage was located.

Following the hearing in Taunton hereinbefore mentioned, the plaintiff secured a writ of replevin, returnable to the seventh district court of this state, and, in company with two deputy sheriffs, went to the premises of the defendant's mother in East Providence to get his property and found that ‘the stuff had been spirited away.’

The deputy sheriff who was to serve the writ testified that he, a fellow officer and the plaintiff were admitted to the premises by a ‘young lady’, whom he described in general terms, and that they found none of the items mentioned in the writ. Although not certain, he pointed out ...