Keith v. Maguire

Lathrop, J. The only ground upon which the plaintiff contends that she can maintain this action is that no notice was given to her to appear in the proceeding for a sale of the goods under the Pub. Sts. c. 192, § 25. This section provides for a notice to the “ owner ” of the goods, and her contention is that although her husband stored his and her goods in his name with her full knowledge and approval, still, as she was the owner of some of the goods, she was entitled to notice. We are of opinion that this contention is not tenable. Thé word “ owner ” is not a technical term. It is not confined to the person who has the absolute right in a chattel, but also applies to the person who has the possession and control of it. Thus it has been said in this Commonwealth, in Hartford v. Brady, 114 Mass. 466, 470, a case under the Gen. Sts. c. 25, § 25, (Pub. Sts. c. 36, § 27,) by which the owner of cattle is made liable for injury done by them : “ The word 1 owner ’ is intended to include the person in whom is the general property in the animals, while it embraces also those who are in possession of them under a special title, or by virtue of any lien.” See also Wisconsin River Log Driving Association v. Comstock Lumber Co. 72 Wis. 464; Hughes v. Sutherland, 7 Q. B. D. 160; The Queen v. St. Marylebone, 20 Q. B. D. 415; Lewis v. Arnold, L. R. 10 Q. B. 245; Dawson v. Midland Railway, L. R. 8 Ex. 8. There are other cases where the word “ owner ” has been held to mean the person in possession and control, and not to include the absolute owner. Camp v. Rogers, 44 Conn. 291. Caudwell v. Hanson, L. R. 7 Q. B. 55. Meiklereid v. West, 1 Q. B. D. 428. Section 24 of the Pub. Sts. c. 192, provides : “ Whoever has a lien . . . for money due to him on account of work and labor, care and diligence, or money expended on or about personal property by reason of any contract express or implied, if such money is not paid within sixty days after a demand in writing delivered to the debtor, or left at his usual place of abode, if within this Commonwealth, or made by letter addressed to him [213] at his usual place of abode without the Commonwealth, and deposited in the post office to be sent to h'im, may apply by petition ” to certain courts named, “ for an order for the sale of the property in satisfaction of the debt.” Section 25, providing for the order of notice to the “ owner,” must be construed in connection with § 24; and we are of opinion that where a person, by the consent of the owner of goods, stores them with a third person as his own, by a contract express or implied, and this third person does not know that any one else is the real owner, it is enough to give the notice required by § 25 to the person with whom the contract is made. Judgment for the defendant.