Clark v. Dean , 143 Mass. 292 ( 1887 )

Morton, C. J.

We need not discuss the question whether there is any material difference between the two counts of the plaintiffs’ declaration, because we are of opinion that, under either count, the plaintiffs are, upon the undisputed evidence in the case, entitled to recover.

It is true, as contended by the. defendant, that, in order to maintain trover, the plaintiffs must show, not only title in the property converted, but also tbe right of immediate possession. Ring v. Neale, 114 Mass. 111. Hardy v. Munroe, 127 Mass. 64. But the auditor found that the goods which the defendant attached as the property of Washburn were the property of the plaintiffs; that they made demand for the goods, which was refused by the defendant; and that they were entitled to the immediate possession of the goods. This made a prima facie case for the plaintiffs, and entitled them to a verdict, unless it was controlled by other evidence. The evidence introduced by the defendant corroborated the auditor’s findings. It shows that the goods were the property of the plaintiffs, consigned to Washburn, and that they had the right of immediate possession of them.

The order to the defendant, signed by Washburn, to deliver the goods to the plaintiffs, gave them the right of possession, and waived any lien of Washburn, if he had any such lien, which does not appear. If Washburn had any lien, his creditors could not attach it, and he could waive it in favor of the general owner. Holly v. Huggeford, 8 Pick. 78. Kittredge v. Sumner, 11 Pick. 50.

The undisputed evidence, therefore, shows that the plaintiffs are entitled to maintain their action upon either count; and the ruling of the court was sufficiently favorable to the defendant.

Judgment on the verdict.