Radigan v. Johnson , 176 Mass. 433 ( 1900 )

Morton, J.

This case was before us in the 174 Mass. 68, on the defendant’s exceptions, which were sustained on the ground that the question “ whether the defendant by accepting the amounts which were paid after he demanded a settlement in January, 1898, waived his right to insist upon the payment of the whole debt, was a question for the jury under suitable instructions.” The case comes here now on exceptions by the plaintiff to a ruling by the court, directing, at the defendant’s request, a verdict for him.

Taking the view of the appropriation of the payments most favorable to the plaintiff, it is clear that, after deducting the payments that were made on February 5 and February 12, there remained a balance due the defendant under the agreement of October 9 of $169.99. It is also clear that when the defendant stopped the horses and carriages on January 21, the plaintiff was in arrear on the board that had accrued since October 9, and also on the weekly instalments which she had agreed to pay under the agreement of October 9. The defendant had a right to insist on the payment of the whole amount due under that agreement and to hold the horses and carriages as security therefor, and without going into detail we deem it enough to say that we do not discover in what took place in regard to the payment of the $100 on February 5 and the $185 on February 12 any evidence that would' warrant a jury in finding that the defendant said or did anything that constituted a waiver of his right to insist on the payment of the whole amount due him under the agreement of October 9, and to hold the horses and carriages as security therefor. On the contrary, the only fail-inference, we think, is that, notwithstanding those payments and however they might be applied, the defendant insisted, as he rightfully could do, that the plaintiff should pay all that was due and then take her horses and carriages away. The defendant, having a right as pledgee to the possession of the horses and carriages, could not, of course, be guilty of conversion so long as he held possession in virtue of that right. Whether he did not also have a stable-keeper’s lien upon the horses notwithstanding the agreement of October 9 for any balance that might remain, we do. not deem it necessary to consider. It would seem that he had none upon the carriages.

The fact that, while attempting to arrive at a settlement, counsel for the defendant may have asserted for the moment a larger right than he could successfully maintain, would not of itself constitute a conversion by the defendant, it being clear that the defendant was entitled to possession as pledgee.

What was said after the agreement of October 9 was signed in regard to the use of the property did not affect the right of the defendant to hold it as pledgee for any balance that might be due, as the plaintiff in substance admits on his brief in his form of stating the question.

We think that the entry must be, exceptions overruled.

So ordered.