Wasserman v. McDonnell

• Decision Date: 27 February 1906
• Parties: WASSERMAN v. McDONNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 326

76 N.E. 959

WASSERMAN v. McDONNELL.

Supreme Judicial Court of Massachusetts, Bristol.

February 27, 1906

COUNSEL

Frank Wasserman, for plaintiff.

Asa Auger, for defendant.

OPINION

LATHROP, J.

This is an action of tort against a constable for the conversion of certain goods alleged to belong to the plaintiff. In the superior court the case was sent to an auditor, under an agreement of the parties that the findings of fact by the auditor should be final. The auditor found for the plaintiff in the sum of $38.26, with interest from August 4, 1904. On motion of the plaintiff, a justice of the superior court ordered judgment for the plaintiff, and the case is before us on the defendant's appeal. It appears from the auditor's report that on February 5, 1904, one Holshanetzky owned a stock of dry goods in a shop in New Bedford, and on that day executed and delivered to one Stern a chattel mortgage of said stock, which was duly recorded. The auditor found that the mortgage was given for the consideration therein named, and was not in fraud of creditors at common law. After giving the mortgage the mortgagor remained in possession of the goods, as he had a right to do under a clause in the mortgage reading as follows: 'I am to sell in my usual course of business, the stock mortgage shall apply to all future acquired mortgage shall apply to all future acquired stock that I shall have in may business.' The possession of the mortgagor continued until four or five days prior to July 12, 1904, when the mortgagee, through his attorney, gave written notice of foreclosure to the mortgagor and took possession of the property for a breach of the conditions of the mortgage. On July 12th the mortgagee sold the mortgagee property in one lump by public auction. The auctioneer put out a red flag the usual time before the sale and the fact of the sale was known beforehand in the neighborhood. There was no written advertisement of the sale. There were 10 or 12 persons at the sale, and the auctioneer cried out the goods in the usual manner. The plaintiff made the highest bid, of $875, and the goods were knocked down to him. There were other bids, among them bids of $700 and $800. The mortgagor was present at the sale and a consenting party to all proceedings. The plaintiff paid for the stock and took immediate possession thereof, and remained in undisturbed possession until the taking by the defendant on August 4 1904. At the time of the sale there were two creditors of the mortgagor other than the mortgagee. One was the landlord of the shop, to whom $10 was due for rent, and the other was Laura Lambert, who on July 8, 1904, had obtained a judgment against Holshanetzky for $15 and costs. On August 4, 1904, the defendant seized a portion of the goods on an execution issued in the above-named suit of Lambert v. Holshanetzky. The defendant removed the goods, and they did not again come into possession of the plaintiff. The auditor found that the sale was conducted properly and in good faith, and that the plaintiff was a bona fide purchaser for value, without notice of any irregularity.

1. The first contention of the defendant is that St. 1903, p. 389, c. 415, applies to a mortgage, and the foreclosure thereof. The act is entitled: 'An act to prohibit the sales of merchandise in bulk in fraud of creditors.' We are of opinion, however, that this act has no application to the case at bar. The object of the statute was to protect creditors against fraudulent sales. Here no fraud was shown. The mortgage was on six months' time, and was given for a valuable consideration. It does not appear that, when it was given, the mortgator had any creditors except the mortgagee. The mortgage was duly recorded.

2. The next contention is based upon the first report of the auditor, in which he stated that he found that additions were made to the stock of goods after the date of the mortgage and that he was left in doubt whether such added stock was sold at the foreclosure sale. When the case was recommitted to the auditor, he found on this point as follows: 'Between the date of the mortgage and July 12th the mortgagor added about $50 worth of goods to his stock. I do not find that any such after-acquired property was sold at the auction.' The mortgage in question contained this clause: 'This mortgage shall apply to all future acquired stock that I shall have in my business.' The defendant...