Blackinton v. Pillsbury ( 1927 )

Pierce, J.

This is a bill in equity against officers and members of the Union Camera Club, an unincorporated association, to recover specifically certain photographic material and articles that have been taken from a locker of the club in which the plaintiff had kept them for several years, and detained, and so secreted that they cannot be replevied. There is nothing in the appeal record to show whether the Union Camera Club was an association for gain or otherwise; and nothing which discloses whether testimony was received, or whether the case was set down by the plaintiff for hearing on the bill and answer. Because of the findings of fact we assume testimony was heard, and consider the appeal on that footing.

The findings by the judge disclose that the plaintiff is and for years has been a member of the Union Camera Club; that while a member he had kept for several years his photographic material in a locker numbered 32; that the records of the club indicated that the plaintiff was entitled to lockers numbered 36 and 40 and that a former member of the club was entitled to use locker 32; that the bill rendered to and paid by the plaintiff described the lockers assigned as 36 and 40; that the plaintiff took no steps to have the numeration error corrected; that the defendant Francis Bellevue, chairman :of the house committee, in the performance of his official duties, acting in good faith and in the belief that he was disposing of property that belonged to the former member of the club, took out the contents of locker 32, not knowing that the property belonged to the plaintiff, and disposed of it in such manner that a part of it was taken by others and the rest was lost or destroyed. There is nothing in the record that indicates that the former member ever used any locker of the club, or that the use of locker 32 by the plaintiff for years was not known to members and officers of the club. In addition the judge found that Bellevue was acting in the interest of the club; that he received no benefit personally from his action, which was the result, in part at least,.of the failure of the plaintiff to enlighten him as to the plaintiff’s possession of the locker; and ruled that the defendant Bellevue is not hable for conversion. The plaintiff makes no question as to the propriety of a dismissal of the bill as to all defendants other than Francis Bellevue. The case is before this court on the appeal of the plaintiff from the final decree dismissing the bill with costs to one defendant.

Members of clubs not organized or conducted for gain are not partners and they do not hold the relation of principal and agent the one to the other. Wise v. Perpetual Trustee Co. Ltd. [1903] A. C. 139. Flemyng v. Hector, 2 M. & W. 172. Because of the finding that Bellevue “acted . . . in the performance of his official duties” we shall assume that the rules of the club authorized its house committee to remove the contents of the locker 32; and further assume that the plaintiff as a member of the club authorized the house committee to do what was done by its chairman to the extent the acts done were within the scope of the conferred authority. It is manifest the acts of Bellevue were in fact and in law a conversion of the property of the plaintiff if they were done by him in his individual capacity; and equally plain that they did not constitute a conversion if what was done was with the authority express or implied of the plaintiff. Scollard v. Brooks, 170 Mass. 445, 448. Stephens v. Elwall, 4 M. & S. 259. McMorris v. Simpson, 21 Wend. 610, 614. While the right to remove the contents of locker 32 did not by implication convey the right of abandonment if Bellevue considered the property removed of no value or fit to be discarded as rubbish, there is no evidence that Bellevue abandoned the property or failed to protect it against wrongdoers. It follows that the decree must be affirmed.

Ordered accordingly.