Bartlett v. Bramhall , 69 Mass. 257 ( 1855 )

Metcalf, J.

The assignment to the defendant may hare been valid, as between the parties to it, but it was not valid against any creditor of the assignors, who was not a party to it. Wyles v. Beals, 1 Gray, 233. And it has been avoided at the instance of such a creditor. So much of the assigned property as remained specifically in the hands of the defendant, or under his control, when proceedings in insolvency were instituted by the assignors, was transferred to the plaintiff. And there was also conferred on the plaintiff the right to recover of the defendant the full value of that part of the assigned property which he had sold, and also all the money which he had collected on the assignors’ choses in action. He has no right to deduct therefrom the amount of his claim on the assignors, by way of set-off; but must prove that claim before the commissioner, and take his dividend, like other creditors.

The plaintiff, by agreement of the parties, is to have judgment, in the action of tort, for the value of all the property for which the defendant is liable in that form of action, and judgment, in the action for money had and received, for the money or money’s worth that the defendant has received from a disposition of the assignors’ property in a way which does not render him liable in trover. In trover, the plaintiff is entitled to recover the value of the goods at the time of conversion, with interest after, except when the goods, after conversion, have been restored; and there can be no set-off, by the defendant, of any claim of his against the plaintiff.

But in an action for money had and received from a wrongful sale of property, the plaintiff can recover only the amount of money actually received by the defendant for the property; and in many cases the defendant may set off his claim against the plaintiff. The tort and damages therefor are waived. In this form of action, this defendant is answerable for the several sums of money mentioned in the statement of facts, obtained by acts which are not technically a conversion of the property, including the amount of notes taken by him on his adjusting sundry book accounts of the assignors; (1 Steph. N. P. 328; Floyd v. Day, 3 Mass. 403;) deducting his expenses of collection, which the plaintiff must have incurred, if the defendant had not; but deducting nothing for his labor and services, which are shown, by the events that have occurred, to have been unwarranted and illegal The deduction for expenses of collection is not allowed as compensation to the defendant for collecting, but because the claims collected were not worth more to any body than the sum which the claimants could obtain therefrom, after incurring the necessary expenses of collection. See Martin v. Porter, 5 M. & W. 354; Morgan v. Powell, 3 Ad. & El. N. R. 284, 285, and 2 Gale & Dav. 723-725 ; Grimshaw v. Atterwell 8 Car. & P. 6; Wild v. Holt, 9 M. & W. 672.

In the action of trover, the plaintiff is entitled to recover the value of the other goods and chattels that were assigned to the defendant and remained under his control.