Dow v. Cheney

Mobton, J. At the trial, the plaintiff introduced evidence tending to show that the articles claimed in his writ were tools, implements and fixtures, and materials or stock, necessary for 183 carrying on his trade of a confectioner, and designed and procured by him to be used therein; and' the instructions given assumed that they were in whole or in part exempt from attachment, under the Gen. Sts. c. 123, § 32. The attachment by the defendant, and the control and dominion which he exercised over the property, to the exclusion of the rights of the plaintiff, were acts sufficient to constitute in law a conversion, without any demand and refusal. Bowen v. Sanborn, 1 Allen, 389. Woods v. Keyes, 14 Allen, 236. It follows, therefore, that the defendant is liable for the value of such of the attached property as was exempt from attachment, unless the plaintiff by his acts or neglect to act has waived his right of exemption. The grounds relied on by the defendant to show such waiver are, that, soon after the attachment, the plaintiff and the attaching creditor, who was also mortgagee of a part of the attached property, entered into the written agreement of August 9, a copy of which is annexed to the bill of exceptions; that the plaintiff did not then claim that any of the property was exempt from attachment, and never thereafter, at any time before the assignee took possession of the property, notified the defendant that he claimed that the attachment covered property exempt from attachment. We are of opinion that these facts constitute in law a waiver. We cannot doubt that the parties intended, by the agreement, to authorize the sale of all the property attached, whether included in the mortgage or not. This agreement, entered into without any objection that the property was exempt from attachment, was an act of the plaintiff inconsistent, with an intention on his part to claim it as exempt. We do not mean to express the opinion that this agreement standing by itself was an absolute waiver-, so that after the contemplated sale was defeated by the second attachment and the agreement became functus officio, the plaintiff could not insist upon his privilege of exemption; but it was a qualified or limited waiver, and indicated a purpose on his part not to claim the exemption, and would reasonably and naturally induce in the mind of the officer a belief that the property was attachable. If the plaintiff intended to claim tue exemption, good faith and fair dealing 184 required that he should notify the officer of his claim, so that he might relieve the property claimed from the attachment, or protect himself by retaining it in his hands after the assignee was appointed, and until the title could be settled. The fact's pretei.t a case where the plaintiff, by his voluntary acts and neglect to act, has misled the defendant to his prejudice, and must be held to be a waiver. This case is distinguishable from the case of Woods v. Keyes, 14 Allen, 236, where the plaintiff did nothing which could mislead the officer or influence his action, but merely left him to act upon his own responsibility. It is more nearly analogous to the cases of Nash v. Farrington, 4 Allen, 157, and Clapp v. Thomas, 5 Allen, 158, in which the plaintiff, by his voluntary act of intermingling the exempted property with other property which was attachable, and neglecting to claim or point out the portion which was exempt, was held to have waived his privilege of exemption. Exceptions overruled.