Thompson v. Dolliver

• Decision Date: 05 January 1882
• Citation: 132 Mass. 103
• Parties: Charles P. Thompson, administrator, v. William C. Dolliver
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 103

Charles P. Thompson, administrator, v. William C. Dolliver

Supreme Court of Massachusetts

January 5, 1882

Argued November 1, 1881

Essex. Tort by the administrator of John Coakley for the conversion of four carriages. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court on appeal, upon agreed facts, in substance as follows:

Coakley being indebted to the defendant, for money lent and on account of a promissory note, which the defendant indorsed and has since paid, delivered to him a receipted bill of parcels of the carriages in question, which stated on its face to be "for security for end. notes and cash." This paper has not been recorded. At the time it was given Coakley went with the defendant to the place where the carriages were, pointed them out to him, and said that he delivered them to him. The defendant left the carriages in the possession of Coakley, with the agreement that he might use and let the same in his business. The property so remained in Coakley's possession until his death, soon after which, and before the plaintiff was appointed administrator, the defendant took possession of them.

At the time the paper was given, the defendant had no reason to believe that Coakley was insolvent; but his estate is now being settled as an insolvent estate in the Probate Court. The plaintiff made a demand in due form upon the defendant for the carriages.

If, on these facts, the plaintiff was entitled to recover, judgment was to be entered for him in the sum of $ 775; otherwise, for the defendant.

Judgment affirmed.

C. P Thompson, pro se.

S. B. Ives, Jr. & H. N. Woods, for the defendant.

Devens J. Morton & Allen JJ., absent.

OPINION

Devens, J.

It is important to consider whether the transaction between Coakley, the plaintiff's intestate, and the defendant is to be treated as, between the parties, a pledge of property for the security of the defendant, or as a mortgage to him. While the distinction between these two forms of security is well defined, yet, owing to the haste with which transactions are often made, and to the meagreness or abbreviations of the written papers which accompany them, it is not easy always to determine what character is properly to be attributed to them. In Ward v. Sumner, 5 Pick. 59, it is said that whether the transaction there considered should be treated as a mortgage or a pledge must often depend upon the intent of the parties. In that case there had been a conveyance of furniture upon the condition that the deed should be void if the grantor should hold the grantee harmless from certain indorsements made by him, and it was held that the fact that there had been no delivery of the property was decisive that it was a mortgage, and not a pledge. By a mortgage, the granted property passes to the grantee, subject to be revested in the grantor by the performance of the condition. By a pledge, the pledgee acquires a special property only in...