Willard v. Rice

52 Mass. 493

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Shaw, C. J.

The defendants, holding the goods as the consignees of Sampson, can only stand on his title, and make the same defence, after conversion proved, as he could make. That defence is, that part only of the identical hats, which came to the hands of the defendants, were included in the plaintiff’s mortgage, and that the residue were Sampson’s own goods. This leads to the only question of law, that is raised by the report, viz. whether the rule of law prescribed by the judge, in his instructions to the jury, was correct. The jury were instructed, that if Sampson intermixed the hats received from other sources, and which were his own, with those mortgaged, so that they could not be distinguished, the mortgagee had a right to hold the whole. This instruction, taken in connexion with the subject matter, and the facts in proof, we think was right. Sampson was the mortgagor, but, being intrusted with the possession of the goods, it was his duty to keep them separately, and preserve the mortgagee’s property. His intermixing them purposely, or through want of proper care, was a violation of his duty, and unlawful. As his own could not be distinguished, he could take none of the mixed parcel without taking the plaintiff’s, which he had no right to do; and as against him and his consignees, the plaintiff must hold the whole. Hathaway v. Ryder, 2 Pick. 298. Colwill v. Reeves, 2 Campb. 576. 2 Kent Com. (3d ed.) 364.

Judgment on the verdict.