Metcalf v. McLaughlin

Colt, J. The mortgage, under which the plaintiff claims as assignee, contained a stipulation on the part of the mortgagor that the mortgaged goods should not be removed from the house in which she then lived without the consent of the mortgagee. After the mortgage was given, the possession of the property remained with the mortgagor, by the consent of the plaintiff, up to the time of the alleged conversion. The defendant was a teamster employed by the mortgagor to remove the goods to another house in the same street, and, while so employed, was forbidden to remove them by the agent of the plaintiff. The jury found, under the instructions given, that the defendant had no intention to convert the property to his own use, or to the use of the mortgagor, but simply intended to transport it from one house to another, there to be used as before by the mortgagor; and that the plaintiff’s agent only forbade such re [87] tnoval, and showed the mortgage, under which he said he was entitled to possession, after the defendant had already removed r part of the goods. We see no error in the refusals of the judge, or in the instructions given. The plaintiff, as mortgagee, having the legal title and right of possession, permitted the goods to remain in the possession of the mortgagor, and thereby authorized her to commit the temporary custody of them to the teamster, who, as her servant and agent, had undertaken to remove them to her new residence in the vicinity. The legal possession of them was still in the mortgagor; and there was no intent on the part of either to deprive the plaintiff of the property. Although the mortgagor had agreed not to remove the goods, still, so far as this defendant’s justification is concerned, she might “ lawfully direct such removal; ” and that is all that was meant by the ruling at the trial. The case discloses on the part of the defendant no assumption of ownership, or of a right to dispose of another’s goods, by wrongfully taking, illegally using, or wrongfully detaining them. Polley v. Lenox Iron Works, 2 Allen, 182. McPartland v. Lead, 11 Allen, 231. Gilmore v. Newton, 9 Allen, 171. Exceptions overruled.