Gamson v. Pritchard , 210 Mass. 296 ( 1911 )

Braley, J.

The distinction between a mortgage and pledge of personal property frequently has been pointed out, but whether the transaction shall be treated as having the characteristics of one form of security rather than the other often must rest on the intention and conduct of the parties to be ascertained from the evidence. The question is for the jury under appropriate instructions. Thompson v. Dolliver, 132 Mass. 103.

The bill of parcels, even if the plaintiff was named as the buyer, contains no condition of defeasance, or stipulation that he is to hold the title as collateral security, and on its face the transaction did not amount to a mortgage. Shaw v. Silloway, 145 Mass. 503. Copeland v. Barnes, 147 Mass. 388. But the dominant purpose to secure the plaintiff in some form for money lent is free from doubt. The defendants offered no evidence to contradict his statement, that at the request of the partnership known as the Bay State Barrel Company he advanced the price for the wagon with the understanding that the bill of parcels should run directly to him, and that the property was to be considered as security until the loan had been repaid, but that he did not take possession, and after the purchase it was delivered to the company, and used in their business. The general title having passed to the company, if the wagon then had been delivered to the plaintiff he would have become a pledgee, and actual and continuous possession by him would have been essential to preserve the lien. Radigan v. Johnson, 174 Mass. 68, 73. Harding v. Eldridge, 186 Mass. 39, 42, 43. But if a mere agreement that the creditor shall hold certain property of the debtor as security is insufficient, a pledge takes effect upon delivery and, no adverse rights having intervened, the plaintiff’s actual possession of the wagon which he had taken under the bailment prior to the attachment by a creditor of the firm, although subsequent to the contract, was effectual, and completed the pledge. The executory agreement to pledge the property had become executed. Copeland v. Barnes, 147 Mass. 388, 390. Parshall v. Eggert, 54 N. Y. 18.

The attachment having been an unjustifiable interference with the plaintiff’s rights, he can maintain replevin against the attaching officer to recover possession. Way v. Davidson, 12 Gray, 465. Johnson v. Neale, 6 Allen, 227.

It is stated in the record that full instructions were given which apparently were satisfactory to the defendants, and, the verdict for the plaintiff having been warranted by the evidence, the exceptions must be overruled.

So ordered.