Schlatter v. Young , 197 Mass. 36 ( 1907 )

Rugg, J.

This is an action of contract. Exceptions were taken before a judge of the Superior Court sitting without a jury. The plaintiffs’ declaration was upon an account annexed. Most of the items were for coal delivered at a certain greenhouse of which the defendant was the owner. It is not asserted that the defendant was personally at the greenhouse during the time when the coal was delivered, one Buckleton being in actual possession and control. The points in controversy at the trial were whether the defendant had ordered the coal, whether Buckleton was acting as the agent for the defendant in ordering it and conducting the business of florist and whether the defendant received and accepted any substantial benefit from the acts of the plaintiffs. There was conflicting evidence upon all these points. The judge found, in accordance with requests of the plaintiffs, that the defendant was the owner of the greenhouse and whatever of its contents was covered by a certain mortgage, by the foreclosure of which the defendant acquired title. This mortgage was dated May 29, 1901, and was foreclosed by sale at public auction on January 7,1907. No request was presented nor finding made as to the title to the plants in the greenhouse at the time of the delivery of the coal. Although the mortgage covered the plants then in the greenhouse and future acquired property, it also contained a reservation to the mortgagor of the right to sell flowers and plants in the ordinary course of trade, and there was no evidence that the mortgagee ever took possession under his mortgage of the property acquired after its delivery. It was necessary for him to do this at least in order that title to such property might pass to a purchaser at the foreclosure sale. Wasserman v. McDonnell, 190 Mass. 326. There was no evidence as to whether any of the plants included in the mortgage remained at the time of the sale, but there was plenary evidence that flowers and plants had been sold since the date of the mortgage. There was no testimony contradicting that given by two witnesses, that no plants were included in the foreclosure sale. It was therefore impossible to make the finding of fact or ruling of law requested by the plaintiffs that the defendant accepted or received benefit from the acts of the defendant, and was indebted for the items of the plaintiffs’ account. Even if all the contents of the greenhouse had been owned by the defendant, it would not follow as matter of law that he would be bound to pay for coal ordered by one in possession, not as his agent, but in some independent capacity. Upon all the other matters of fact as to which rulings were requested there was abundant evidence warranting findings by the judge adverse to the contentions of the plaintiffs, and such findings cannot be disturbed. Bailey v. Marden, 193 Mass. 277. The requests which the plaintiff styled “as matters of law,” were based upon aspects of the evidence, which the judge was not bound to believe, and obviously did not believe. Therefore they were properly refused.

Exceptions overruled.