Herries v. Bell

220 Mass. 243

Opinion

Pierce, J..

On a Lord’s day in 1910, the defendant voluntarily gave and delivered to the plaintiff’s wife a Scotch collie dog, for the alleged conversion of which this action was brought.

The gift, complete in itself, contains no element of labor, business or work. It is not an act of contract; it does not give rise to any contractual obligation, and it is not in violation of R. L. c. 98.

In May, 1911, the dog was delivered into the possession of the defendant by the plaintiff, with the consent of the plaintiff’s wife, and was retained by the defendant until the autumn of 1911, when, secretly, with the approval of the plaintiff’s wife, the plaintiff took it away.

The bill of exceptions does not state, nor can it be inferred therefrom, that the purpose of this delivery to the defendant was to revest the title by way of gift, sale or otherwise. Such delivery created, at the highest, a bailment at will revocable without demand or notice at the pleasure of the bailor.

The dog,, while in the possession of the plaintiff, of its own volition or in response to the whistle call of the defendant, followed the defendant’s team to the home of the defendant, and there was detained, under a claim of ownership, against the demand of the plaintiff.

At the time the dog followed the team at the call of the defendant the plaintiff had the possession, and, by reason of the wife’s consent thereto, the right to possession as against all persons other than the wife. The taking of the dog, and the refusal to deliver it on demand under an assertion of title, either or both, was a conversion. The plaintiff could maintain the action because of the wrong to his possession, and if also the right to possession were needed, the wife at the trial testified that she had granted it.

The plaintiff as bailee was entitled to recover full damages. Pratt v. Boston Heel & Leather Co. 134 Mass. 300. There was no error in the refusal to give the rulings requested or in those given.

Exceptions overruled.