Goell v. Morse

126 Mass. 480, 1879 Mass. LEXIS 299

Opinion

Lord, J.

There can be no doubt of the correctness of the ruling of the Chief Justice of the Superior Court. The plaintiff and Willis were the owners as tenants in common of the horse. The facts show conclusively that the transaction did not constitute a partnership, in reference to the title to the horse. The mode of using and the expense of keeping are conclusive upon this point. Being thus tenants in common, neither party had any lien upon the share of the other for expenses incurred, either for labor done upon the horse as by shoeing, or for advertising him for sale, and Morse had no lien upon him for the keeping. Goodrich v. Willard, 7 Gray, 183. Even if there had been a lien, no steps had been taken to enforce it. The facts find an express agreement that “neither party should sell the horse without the concurrence of the other.” The sale by Morse by the authority of Willis was a conversion of the part of the horse owned by the plaintiff. The sale was by the concurrent action of both defendants, and was in itself a conversion without the subsequent demand which was proved.

Exceptions overruled