Doody v. Collins

Pierce, J. The defendant, in possession of an automobile to which the plaintiff had the right to immediate possession on February 24, 1915, received a letter from the plaintiff the material part of which read, “We wish to notify you to hold the car subject to our disposal. The storage etc., Mr. Sewell contracted and will have to pay. Under no conditions should Mr. Sewell be allowed to take the car from your garage unless you receive written [334] instructions from us.” Thereafter, by virtue of St. 1913, c. 300, § 1, the defendant had a lien on the automobile for proper charges for storage and care. On April 24, 1915, without demand for possession, without recognition of the defendant’s right to assert any lien, and before tender of any sum in payment of defendant’s probable charges for the storage and care of the automobile, the plaintiff sued out his writ of replevin. The report of the judge of the Municipal Court states, “At the time of replevin, the defendant claimed and demanded payment of a storage lien up to May 4, 1915, which would be the end of an even seven months from October 4, 1914, of $105.” The defendant requested the judge to rule, “Upon all the evidence the defendant is entitled to a finding.” As the defendant had a lien under the statute for the period between February 24, 1915, and April 24, 1915, the plaintiff was not entitled to possession of the automobile as against the defendant’s claim of hen, without proof of prior payment of the proper charges, of tender of payment thereof to the defendant and of his refusal to receive the same, or such other conduct on the part of the defendant as estopped him to contend either that he had a lien or that the plaintiff had made no sufficient tender. Gilmore v. Holt, 4 Pick. 258. Williams v. Patrick, 177 Mass. 160. The right to maintain replevin of a chattel is predicated upon the plaintiff’s general or special title and upon his right to immediate possession as against the defendant in the replevin writ at the time of the issuance of the writ. Johnson v. Neale, 6 Allen, 227. Fowler v. Parsons, 143 Mass. 401. Field v. Fletcher, 191 Mass. 494. Therefore, we need not discuss whether the demand of the defendant, made at “the time of replevin,” for a sum in excess of his legal claim, amounted to a conversion or whether a tender must have been made. Compare Hamilton v. McLaughlin, 145 Mass. 20; Folsom v. Barrett, 180 Mass. 439. Judgment for the defendant affirmed.