Whitman v. Merrill

125 Mass. 127, 1878 Mass. LEXIS 35

• Court: Massachusetts Supreme Judicial Court
• Decided: July 29, 1878
• Status: Published

Opinion

Lord, J.

A fallacy of the plaintiffs is the assumption that a judgment for the plaintiff in replevin necessarily implies an unlawful taking of the replevied goods by the defendant. This is not so. Replevin lies for an unlawful detention, although the original taking was lawful.

In this case, there is nothing to show the taking by the defendant to have been unlawful. The plaintiffs sold and delivered to Wilmot a bill of goods, being those replevied. A stranger could treat the goods thus delivered to Wilmot, while in his hands, as Wilmot’s; could purchase them, could perform labor upon them, and a creditor of Wilmot might attach them as his. The plaintiffs, however, contend that the sale to Wilmot was voidable, and we are to assume it as voidable by reason of Wilmot’s fraud. But, as to third persons dealing with the property in good faith without knowledge of the fraud, the sale is good until rescinded by the plaintiffs. This rescission did not take place till after the attachment; nor does it appear to have been till immediately before the replevin. Eo detention of the goods by the defendant after such rescission is shown, except a momentary one; and for that nominal damages only were properly assessed.

Exceptions overruled.