French v. Haskins

75 Mass. 195

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Shaw, C. J.

The assignment of Bartlett was in .terms the transfer of a part of a quantity of goods, in no way designated or identified, except by the mortgage from Bell to Bartlett. It was in terms a transfer of part without separation, and accompanied by no act of separation or delivery in fact. As a sale, conditional or absolute, it was void to pass the property, in any part, and vest it in the assignee. Bartlett had expressly refused to assign the entire property, by which, perhaps, it would have been sufficiently described and identified, and had refused so to assign, because he did not intend to part with his own possession and control of the mortgaged property. This partial assignment may possibly be construed to be of the nature of a declaration of trust on the part of Bartlett, binding him in equity to account with the plaintiff, out of the proceeds of the sale of these goods, either for the whole $200, or for such proportion thereof as the two notes of the plaintiff bore to the whole of the notes secured by it. But it did not make French tenant in common with himself. The legal title still remained in Bartlett, so that his sale to the defendant was good. The plaintiff’s action being in the nature of tort, founded solely on the ground that the plaintiff acquired a specific right of property in the goods, and that title having failed, this action cannot be maintained. Judgment for the defendant.