Entin v. Evans

Crosby, J. This is an action of tort for the conversion of certain goods, brought by a mortgagee against the defendant, a sheriff, whose deputy took possession of them on a writ of replevin in which Joseph Elias and Company was named as plaintiff and Harry Stollin as defendant. A written demand for the goods was made by the plaintiff in this action on the deputy sheriff. In July, 1913, Stollin purchased a carload of glass from Joseph Elias and Company and thereafter made payments on account. There was evidence that when the glass was sold Stollin stated that “he owned the business, that it was not mortgaged, and that [lie] . . . promised he would not mortgage the business.” There also was evidence that the plaintiff at various times between January 26, 1912, and January 2,1914, lent to Stollin sums of money amounting in all to $1,006.41; that these loans, except the last three, were evidenced by promissory notes payable on demand. On December 2, 1913, Stollin and his wife gave to the plaintiff a promissory note for $1,000 payable in six months from date, and secured by a mortgage of his stock of goods. The note and mortgage were executed and the mortgage was recorded on the same day. The plaintiff testified that she had previously loaned Stollin $880, and held twenty-one of his notes aggregating that amount which she returned to him upon receipt of the note and mortgage for $1,000. The judge of the Superior Court ruled that the mortgage was given to secure a pre-existing debt so far as it related to the amount due at the date of the mortgage, and for that indebtedness the plaintiff was not entitled to recover. He instructed the jury, in substance, that if the last three loans (amounting to $126) were made at the time the mortgage was given or thereafter, and were so made by the plaintiff in good faith without any knowledge on her part of fraud committed by Stollin, she was a bona fide purchaser for value and could recover. The jury returned a verdict for the defendant. The plaintiff saved several exceptions, all of which are now waived except those relating to the refusal of the judge to give [46] the eighteenth and nineteenth requests, and to that portion of the charge in which the jury were instructed that the plaintiff could not recover for loans made before the mortgage was given. This instruction evidently was based upon Goodwin v. Massachusetts Loan & Trust Co. 152 Mass. 189, from which the judge quoted in his charge. Although in that case it was held that the pledging of' chattels as security for a pre-existing debt, when there is no present consideration for the pledge, does not constitute the pledgee a holder for value, we are of opinion that the facts there in question are plainly distinguishable from those in the case at bar. In the present case the plaintiff testified that when the note and mortgage were given to her by Stollin, she returned to him the twenty-one notes representing the $880 previously loaned, and gave him two checks of $50 each, which he cashed. If this evidence was believed by the jury it could have been found that the mortgage was supported by a valuable consideration, and if the loans were made without knowledge on her part of any fraud of Stollin it was valid at common law. While there was a verdict for the defendant, it does not appear on what ground it was rendered; the jury may have found that the three loans were not made by the plaintiff, but she was not precluded from recovering at common law for any loans which she could prove had been made before the date of the mortgage, in good faith and for a present consideration. In view of what we have said, it is unnecessary to determine whether the eighteenth and nineteenth requests should have been given, or whether the law as it previously existed was changed by the sales act. St. 1908, c. 237. Exceptions sustained.