Robinson v. Bird

Holmes, J. The defendant is an auctioneer, who has sold personal property belonging to the plaintiffs. Therefore he is liable for a conversion, unless he can show some other excuse or justification than his good faith and his ignorance of the plaintiff’s title. Coles v. Clark, 3 Cush. 399. Hoffman v. Carow, 22 Wend. 285. Cochrane v. Rymill, 40 L. T. (N. S.) 744. Hollins v. Fowler, L. R. 7 H. L. 757. The mere fact that the plaintiffs made a bailment to Mrs. Bryant, and that she mortgaged the goods to Stetson, who took without notice and for value, and directed the present sale, is not such a justification. The passage' to the contrary in the note to Wilbraham v. Snow, 2 Wms. Saund. 47 a, cited in Vincent v. Cornell, 13 Pick. 294, 296, is a misunderstanding of the Year Books, on a matter as to which their doctrine no longer is the law, as every one knows, and as may be seen from the later additional note. See Hirschorn v. Canney, 98 Mass. 149, 150, 152; Coggill v. Hartford & New Haven Railroad, 3 Gray, 545. The explanation of the early law is a matter of antiquarianism, which would be out of place here. If at the time of the sale Mrs. Bryant had had a right of possession, to the exclusion of the plaintiffs, which was not terminated by the sale, the plaintiffs could not have maintained trover; and this principle is applied against a seller upon a conditional sale, so called, where the plaintiff reserves the title, if the time for payment has not arrived at the time of the alleged conversion. Newhall v. Kingsbury, 131 Mass. 445. Day v. Bassett, 102 Mass. 445. Fairbank v. Phelps, 22 Pick. 535. Vincent v. Cornell, 13 Pick. 294. But in the case at bar not only had Mrs. Bryant expressly agreed not to sell or mortgage the goods, but at the time of the mortgage to Stetson and of the sale by the defendant she was= in default for the so called rent, and by the words of her agreement the plaintiff's had an immediate right of possession without demand or notice. The plaintiffs have not contributed to the defendant’s mistake, as in Hills v. Snell, 104 Mass. 173. There the plaintiffs, who were warehouse men, not owners of the goods in question, made the mistake of delivering the wrong man’s flour to one who sold to the defendant, and it was held that they could not maintain trover after he had used it in good faith. It is sug — 361 — gested that the plaintiffs had constructive notice of the mortgage, and therefore should be deemed to have waived their rights. We do not see why, but it is enough to say that the plaintiffs had not the constructive notice supposed. Recording the mortgage did not affect them. George v. Wood, 9 Allen, 80, 83. Western Union Telegraph, Co. v. Caldwell, 141 Mass. 489, 493. Bates v. Norcross, 14 Pick. 224, 231. Judgment for plaintiffs.