Clark v. Dearborn , 103 Mass. 335 ( 1869 )

Wells, J.

There appears to be no dispute about most of the facts necessary for the decision of this case, namely: that For-bush was the general owner of the property sued for; that he was indebted to Mitchell, Allen & Company for advances or otherwise; that he consigned this lumber to them to secure that debt, “ with authority to ship and sell the same ; ” that Mitchell Allen & Company consigned it to the plaintiffs for sale on their account, and forwarded to them the bill of lading and their letter of instructions.

The consignment to Mitchell, Allen & Company gave then® a special property in the lumber to the extent of their debt, com missions and expenses, including freight. The terms and nature of the consignment implied a power of substitution by con signment, like that to the plaintiffs. It was accompanied by possession in Mitchell, Allen & Company; and their letter of instructions and the bill of lading gave to the plaintiffs the right of possession. Prima facie that is sufficient to enable them to maintain an action for the possession, or for any injury to the goods. As against trespassers, and those showing no title or right, it is sufficient for all purposes. The only defence set up in the answer is the attachment made by the defendant as a deputy sheriff upon a writ against Forbush, and the proceedings in pursuance thereof. All those proceedings, from the attachment November 23, 1867, to the sale on execution February 6, 1868, within thirty days from the date of the judgment in that suit, are regular in form. No objection is made to them on the ground of any defect in the record. The justification of the officer is thus shown to be complete, unless the attachment was dissolved by the demand and neglect to pay the amount due upon the lien of Mitchell, Allen & Company; or unless he became a trespasser ab initia, by reason of the alleged abuse of his process. This action was commenced December 24, 1867. It is contended that the first special finding of the jury sustains the position of the plaintiffs, that the officer abandoned the attachment at once and delivered the property to Pike, and that the subsequent sale on execution was not a real sale, but only a cover for previous abuse of his authority under the attachment. If so, the officer would be liable as a trespasser ab initia. McGough v. Wellington, 6 Allen, 505.

B.ut the form of the question, to which the jury returned their answer, does not make it certain that they did find this fact to be as the plaintiffs contend. As the facts of attachment, and sale on execution within thirty days after judgment, were shown by the record, we may assume that the answer of the jury negatives the other proposition contained in the question: to wit, that the attachment continued up to the time of selling on execution. But that would be negatived, whether the attachment had been dissolved by the abuse of process by the officer, or by demand and neglect to pay the amount due under the lien. It is necessary therefore to consider the effect of the third special finding of the jury, and the rulings of the court below in relation thereto.

Upon this question, we are of opinion, 1. that the plaintiffs were rightful holders of the property, entitled to receive the amount due to Mitchell, Allen Si Company under their lien, and to make the necessary demand therefor; Gen. Sts. c. 123, §§ 62, 63; Pettis v. Kellogg, 7 Cush. 456; 2. that the court below correctly ruled that the freight upon the lumber, from Kinston to Newbern, paid by Mitchell, Allen & Company, was properly included in the amount claimed as due under that lien; and 3. that the question whether the “ store account ” and the “ cost of the well ” were covered by the lien, or improperly included in the demand, was rightly left to the jury. Harding v. Coburn, 12 Met. 333. Besides, even if it were a question for the court, we think the jury have decided it rightly, upon the report as it stands, so far as the “store account” is concerned, and so the defendant has no ground of exception. The “ cost of the well” was only $95. Deducting that from the whole amount demanded, the debt would still largely exceed the value of the property, as found by the jury, after deducting from the verdict the amount of the freight paid by the officer. It would thus be made to appear that the defendant was in no way prejudiced by the over-statement, if it were such. Rowley v. Rice, 10 Met. 7.

We are of opinion that the amount so paid for freight should be deducted from the verdict, in accordance with the terms of the reservation. There is nothing in the case to show that the lien for the freight was not in force when the property was attached. The jury have not found that it was not in force, and we cannot assume it from the statement in the report that the plaintiffs offered evidence tending to show that they “ took possession of the cargo, and offered to pay the freight to the master of the vessel.” The property was apparently subject to a lien for the freight, and its value should be estimated with reference to that condition of incumbrance. Adams v. O'Connor, 100 Mass. 515. If the jury have already made a reduction on that account; or if they have improperly rendered a verdict of about the amount due under the lien, upon the supposition that no deduction would be made by the court; they have done so contrary to the instructions given them, and the remedy is to be sought by an application to that court for a new trial. There is no question raised by this report upon which we can consider the suggestions of the plaintiffs in that regard.

The plaintiffs were entitled to have interest added, in the assessment of their damages. But the attention of the judge does not appear to have been called to it; and the reservation does not permit us to sustain the verdict in their favor, otherwise than upon the condition that they remit $600, the sum fixed in the court below as the amount paid by the officer for the freight. The case will still be open there to any motion for a new trial. The order, now to be made, must be, that the plaintiffs are to remit $600 from the verdict, and to have judgment for the balance. Ordered accordingly.