Emery v. Seavey , 148 Mass. 566 ( 1889 )

Holmes, J.

The goods in question were in the mortgagor’s possession, and the mortgagee was summoned by a trustee writ in the usual form. A writ in this form has been held or assumed to be sufficient, under Pub. Sts. c. 161, § 79, too often to admit of argument on general grounds. Simmons v. Woods, 144 Mass. 385. Goulding v. Hair, 133 Mass. 78, 80. Flanagan v. Cutler, 121 Mass. 96. Barnard v. Moore, 8 Allen, 273, 274. Brown v. Neale, 3 Allen, 74. Martin v. Bayley, 1 Allen, 381, 384. Kent v. Lee, 9 Gray, 45.

It is suggested that in this case the mortgagee (the present plaintiff) may have been misled, as he had purchased goods of his mortgagor, and therefore might have thought that he was trusteed in respect of his debt for those goods. But if this suggestion could be listened to in any case, there is no sufficient ground for it here, since, by the plaintiff’s own statement, he was not a debtor for those goods, but the price went at once into an open account between him and the mortgagor, the balance of which, by their agreement, went to reduce the mortgage debt.

The scope and effect of the writ were fixed at the moment of service. It is argued, with much plausibility from what has happened since, that the defence to the present action (namely, that the present plaintiff was trusteed under Pub. Sts. c. 161, § 79) is an afterthought, and that at the time the, plaintiff in the former action meant to summon the present plaintiff only as a debtor of the original defendant. We cannot speculate upon that question. What the former plaintiff did was to attach mortgaged goods in the possession of the mortgagor, and to summon the mortgagee as trustee in a form which satisfied the statute.

If we are to look at the later proceedings, the next step was that the mortgagee gave notice of his mortgage under Pub. Sts. c. 161, § 75, but the mortgage debt was not paid, which was notice to him that the goods were not held under § 74. Then the mortgagee answered, “No funds,” and this answer was such a submission to examination that when he was discharged the attachment of the mortgaged goods was discharged. Goulding v. Hair, 133 Mass. 78. He was not discharged, however, until after this action was begun.

Then it is said that the attachment was abandoned, (Boynton v. Warren, 99 Mass. 172,) because the officer, when notified by the original defendant to remove his keeper, intended not to remove mortgaged goods. He did remove mortgaged goods, however, and refused to deliver them to the mortgagee when the latter demanded them. His so called intent not to take mortgaged goods was only a hope, or a wish, as to the goods in question. His actual intent as to these specific goods, identified by the senses, was to assert a lien upon them, just as when a man shoots at or contracts with B., thinking him to be A., he intends to shoot or contract with B., the person whom he sees before him. Edmunds v. Merchants’ Transportation Co. 135 Mass. 283, 284.

The original defence in the present action was that the goods were not covered by the mortgage, and a belief that they were not covered by it may have been the motive of the defendant’s refusal to deliver them. He refused, however, simplieiter. He did not give his reasons, or shut himself off from any existing justification. He therefore must be taken, or at least might have been found, to have done what he did, and to have asserted the attachment, by virtue of all powers him thereto enabling. The case is stronger than the ordinary case of a lien, where, if the refusal to deliver is stated to be on the ground of the lien, the lien may be discharged at once by payment of the amount for which the goods are held. In this case, whichever the ground on which the refusal might be put, there was no way in which the plaintiff could have got the property at that time. See White v. Gainer, 2 Bing. 23; S. C. 9 Moore, 41; 1 C. & P. 324; Kerford v. Mondel, 28 L. J. (N. S.) Ex. 303, 306; Scarfe v. Morgan, 4 M. & W. 270; Mexal v. Dearborn, 12 Gray, 336, 337; Everett v. Coffin, 6 Wend. 603. Compare Hanna v. Phelps, 7 Ind. 21; Thatcher v. Harlan, 2 Houst. 178.

As the original attachment of the goods was valid and had not been abandoned, and as the mortgagee had not been discharged when he began this action, it follows that this suit was begun prematurely. Jackson v. Colcord, 114 Mass. 60. Furber v. Dearborn, 107 Mass. 122.

Nonsuit to stand.