Lancaster v. Stanetsky

108 N.E. 1060, 221 Mass. 312, 1915 Mass. LEXIS 828

Opinion

Braley, J.

The judge before whom the case was tried without a jury having found for the plaintiff, the only questions are whether the evidence as matter of law warranted the finding, and if so, whether any of the defendant’s requests for rulings should have been given. American Malting Co. v. Souther Brewing Co. 194 Mass. 89.

The exceptions purport to recite at length all the material evidence. It is conflicting. But the credibility of the witnesses and the weight to be given to their testimony were for the presiding judge. A detailed recapitulation is unnecessary. It is sufficient to say that if the evidence introduced by the plaintiff was believed, the racing machine had been stored on the premises of the carbonator company where it remained at the time of the foreclosure of the mortgage. It is of course plain, that, the purchaser at the sale having acquired no title to the machine, the defendant, who subsequently bought from the purchaser, acquired none. And, if the defendant although acting in good faith thereafter exercised dominion over the plaintiff’s property, no demand was necessary before bringing an action for conversion. Gilmore v. Newton, 9 Allen, 171. Greenall v. Hersum, 220 Mass. 278. The judge could find, that when the defendant took possession of the premises he knew that the machine belonged to the plaintiff, by whom he was notified how it was packed and marked as well as of the place where it was stored. Its subsequent sale either in whole or in part by the defendant, when he disposed by auction of the goods and chattels purchased, was a conversion. Lorain Steel Co. v. Norfolk & Bristol Street Railway, 187 Mass. 500, 506.

It is true, as the defendant contends, that to reach this conclusion the judge must have disregarded the defendant’s evidence, but this is not an error of law.

The requests therefore properly were refused and the exceptions must be overruled.

So ordered.