Thayer v. Dwight , 104 Mass. 254 ( 1870 )

Wells, J.

The facts reported do not show a waiver of his lien by Hulbert; nor such an abandonment of possession as would discharge or destroy the lien. By the terms of the pledge, he was authorized to make a sale of the property, and apply the proceeds to the payment of his debt. He could do this through agents, as well as personally. There was nothing in the nature of the transactions, or the relations of the parties, to prevent his employing the debtors themselves as such agents. By allowing them to contract in their own names he took the usual risks of such an authority; and if the purchasers had paid the agents in full, he could not have reclaimed the goods nor recovered the price, but would have been compelled to look only to his agents for the proceeds. He also retained the rights of a principal; and, by notifying the purchaser of those rights, became entitled to receive the unpaid purchase money in preference to his agents.

We do not understand that a pledgee loses his lien by per mitting the pledgor to have possession or control of the property for a special and limited purpose, consistent with the enforcement of the lien, and not for his own use merely. Walker v. Staples, 5 Allen, 34. The general owner may be the depositary of his own pledgee. Story on Bailments, §§ 58, 230. The formal possession of the depositary or agent is the legal possession of the depositor or principal.

The plaintiffs rely mainly upon the case of Kimball v. Hildreth, 8 Allen, 167. The general language of the opinion in that case requires to be understood with some qualification, as , suggested in the previous case of Walker v. Staples cited in its support. But the point decided does not conflict with the position of the defendants here. .The judgment could not determine the rights of the pledgee, who was not a party, as against his pledgor, under the several contracts between them. It may be questioned whether anything was decided except that the obligations of the defendant, as depositary or borrower, precluded him from setting the possessory claim of a pledgee, who was a stranger to the bailment out of which the suit arose, against his depositor or lender, who was also the general owner. Story on Bailments, §§ 110, 266. Edwards on Bailments, 83, 87. For the purposes of that suit, and as affecting that contract of bailment, the previous pledge was held to be ineffectual by reason of the temporary surrender of possession to the general owner, by whom it was made. In that case the property had been redelivered to the pledgor, apparently for his own purposes and use. At least, we think the court must have so understood or assumed the fact to be, from the answer of the defendant. The loan of the property to the defendant was not a contract in which the pledgee could intervene as principal, on the ground that the plaintiff was his agent in making it. In both these particulars the present case differs from that. Hulbert has never redelivered the property to the pledgers, nor relinquished to them his possession, except for the single purpose of the sale, which was contemplated by the contract of pledge. Having asserted his rights as principal in that transaction, received the price, and discharged the defendants from their liability on account of their purchase, they cannot thereafter be held to pay the same again to those who were his agents in making the sale. The verdict was therefore rightly ordered for the defendants. Exceptions overruled.