Costa v. Goldenberg , 258 Mass. 264 ( 1927 )

Braley, J.

A verdict for the defendants Goldenberg and Hershman having been directed, the case is here on the exceptions of the defendant Gast. We are of opinion that the defendant has failed to show error in the rulings.

The jury could find that in August, 1918, the plaintiff was engaged in business “as grocer and provision, dealer”.and, having bought goods on credit for which she had not paid, two of her creditors brought suit, and the writs were given to the defendant, a duly qualified constable, for service. He attached all the personal property in the store, some of which consisted of perishable goods, and put in a keeper. The ad damnum in the first writ was $150 and in the. second writ $200, and, on conflicting evidence, it could be found that at the date of the attachments the property seized was very largely in excess of the amounts demanded and of the ad damnums of the writs.

The property, however, being subject to two valid mortgages, the mortgagees, acting under G. L. c. 223, §§ 74, 75, respectively demanded of the defendant payment of the money due. If the money was not paid or tendered by the attaching creditors within ten days, the attachments would be dissolved. G. L. c. 223, § 75, Martin v. Bayley, 1 Allen, 381, Porter v. Warren, 119 Mass. 535, 536, but the defendant, however, did not relinquish the attachment, and whatever rights the mortgagees thereafter may have had as between themselves and the attaching creditors are not material in the case at bar. The mortgagees had not entered to foreclose, and the plaintiff, who was in possession, held the title subject to the mortgages. G. L. c. 223, § 74. Sullivan v. Lamb, 110 Mass. 167. The defendant therefore was bound, on the plaintiff’s request in writing given by her before the ten days had expired, to remove the property or the keeper without unreasonable delay. G. L. c. 223, § 48. See Copp v. Williams, 135 Mass. 401. The defendant removed all the property, which he stored in a warehouse and subsequently seized and sold on execution issued in the first action.

It was the duty of the defendant to decide as best he could whether the property attached would prove sufficient to satisfy the claims of the plaintiffs, and if in the exercise of this discretion he, through an honest mistake, attaches a greater amount, he is not hable to the debtor. Williams v. Eastman, 208 Mass. 579. This question under appropriate instructions was for the jury, which on the record it must be presumed were given. Savage v. Brewer, 16 Pick. 453, 457.

The defendant, if found to have made an attachment which in amount was unwarranted by the writ, became a trespasser ab initio. Walsh v. Brown,194 Mass. 317. And the plaintiff could sue for conversion, as well as for abuse of process. Scollard v. Brooks, 170 Mass. 445, 448. Wood v. Graves, 144 Mass. 365. Humphreys v. Sutcliffe, 192 Penn. St. 436.

The question of damages also was for the jury, and the plaintiff, who testified in substance that the defendant had caused her financial ruin and compelled her to discontinue business, was properly permitted to give an estimate of the loss. Shea v. Hudson, 165 Mass. 43, 44, and cases cited.

The remaining exceptions to the admission and exclusion of evidence are without merit. The defendant’s motion for a directed verdict was denied rightly for reasons previously stated. The defendant also made fourteen requests for rulings, and excepted only to the refusal of the judge to give the twelfth, thirteenth, and fourteenth. But, not having been argued, we treat them as waived.

Exceptions overruled.