Storms v. Smith , 1884 Mass. LEXIS 228 ( 1884 )

Holmes, J.

The mortgagor of the chattels was personally liable to the defendant for their storage, and he could not subject the mortgagee’s interest to a lien in support of his debt without the mortgagee’s authority. The mortgagee had given no authority other than what was to be implied from his allowing the mortgagor to remain in possession of the mortgaged goods, coupled with the fact that it was necessary that the goods should be stored somewhere to prevent their destruction. If these circumstances were enough to support the defendant’s claim, every mortgagor in possession of perishable goods would have power to create a paramount lien upon them, although the proviso against suffering them to be attached, or attempting to sell or remove them in the form of chattel mortgage commonly used, indicates pretty clearly that no such power is intended to be given. But these circumstances are not enough. The mortgage was recorded, and the defendant therefore had notice of it. Hence he was not at liberty to assume that the mortgagor had an absolute jus disponendi from his possession alone; and, if storage was necessary, he was chargeable with notice that the plaintiff had a right to judge for himself where it should be, if his interest was to be charged with the cost. Richardson v. Rich, 104 Mass. 156. Sargent v. Usher, 55 N. H. 287. Bissell v. Pearce, 28 N. Y. 252.

In Hammond v. Danielson, 126 Mass. 294, the description of the mortgaged hack as “now in use at the American Stables” was deemed sufficient to express the intent that the hack “ should continue to be driven for hire, and should be kept in a proper state of repair for that purpose, not merely for the benefit of the mortgagee, but for that of the mortgagor also.” But permission to a mortgagor to retain household furniture for his own use conveys no permission to store it with a third person on account of the mortgagee.

The fact that, some time afterwards, the plaintiff was informed that the property had been stored, does not alter the case. He was not informed that any attempt would be made to hold the goods as against him, or even that the storage had not been paid, and he knew that the defendant was chargeable with notice of his mortgage, and therefore of the want of authority to bind his property on the part of the mortgagor. Hollingsworth v. Dow, 19 Pick. 228. Globe Works v. Wright, 106 Mass. 207. Sargent v. Usher, 55 N. H. 287, 293. See, generally, Robinson v. Baker, 5 Cush. 137 ; Gilson v. Gwinn, 107 Mass. 126. It is still clearer that no personal promise can be implied from the plaintiff’s silence, as argued for the defendant. For the plaintiff knew that the mortgagor had an interest to protect the property, and had a right to assume that he contracted on his own behalf, as in fact he did. Neither was the plaintiff’s silence any fraud, or warrant for the defendant’s inferring that the mortgage was fraudulent. The plaintiff had a right to rely on the notice which the recording of his mortgage gave to all the world, and to leave them to make inquiries if they wanted explanations.

Judgment on the verdict.