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31 Mass. 81

Stone v. Hodges

Massachusetts Supreme Judicial Court

Decided March 15, 1833

Massachusetts Supreme Judicial Court · decided 1833-03-15

<p>A contract was made between K and H, for the joint purchase of 20,000 Russia mats, which were to be stored by H. Afterwards, on May 6, 1829, a new contract was entered into by the parties, which was as follows: u K bought of H 20,000 Russia mats, at 10 cents each, % 2,000. It is understood K is to pay % 4 per month, storage for ttie above mats, from this date, and interest on the mats until paid for 5 and the said K is not to pay for said mats more than the amount indorsed on thip bill, till the same are sold.” On the back of this contract was an indorsement b* H, of the same date, acknowledging the receipt of % 1104*50 in cash and notes. On May 8, 1829, H caused the mats which had not been so paid for, to be attached on a writ in favor of one of his creditors. On May 13, 1829, K was summoned as the trustee of H, at the suit of W. On June 5,1829, K brought an action of trespass against the sheriff for attaching the mats and recovered judgment for the value of the mats so attached. In a process of foreign attachment in which K was summoned as trustee of H. immediately after the amount of this judgment had been paid over to K, it was held, that the property in the mats vested in K, upon the sale to him on May 6,1829 5 that the attachment of the mats, being a tortious act, in no respect affected such sale 5 and therefore that K was chargeable as the trustee of H, when he was summoned at the suit of W, for the residue of the mats not paid for by him at that time.</p>

Cited by 1 later decisions — most recently May 1904

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1833-03-15

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Wilde J.

¶1delivered the opinion of the Court. Upon the facts disclosed by the trustees, we are of opinion, that they are not liable in this suit.

¶2It appears by the disclosure, that before this writ was served upon them, they had been summoned as the trustees of the principal defendants, in a suit against them in favor of Stephen White, and it is admitted that they have been since adjudged trustees in that action. It is not contended, that any surplus remains in the hands of the trustees after satisfying White *85demand ; but it has been urged by the plaintiff's counsel, that at the time of the service of White’s writ, the trustees were not indebted for the mats purchased, because they were not to be paid for until they should be sold by the trustees. That this limitation of the time of payment merely would not discharge the trustees, seems to us very clear. The mats had been sold at an agreed price, part of which had been paid, and the trustees were indebted for the residue. It was a demand debitum in prmsenti, and rendered the trustees liable.

¶3The plaintiff’s counsel have also argued, that the trustees were not liable in the former suit, as they had only a constructive possession of the mats, and as the mats had been at tached and taken by one of the creditors of Hodges and Wheelwright, as their property, the trustees might rescind the contract.

¶4As to the possession of the mats, it is quite immaterial whether it was constructive or actual; the sale was complete, and the property in the mats was vested in the trustees. If they had held the mats in trust, and had been charged on that account, the distinction between actual and constructive possession, as laid down in the case of Andrews v. Ludlow and Trs., 5 Pick. 28, might be applicable. But the trustees were charged in the former suit for the price, and could not, by law, be charged on any other ground.

¶5As to the supposed rescinding of the contract, it is clear that the attaching of the mats, as the property of Hodges and Wheelwright, could have no such effect. The taking by the sheriff under that attachment, was a tortious act, and the trustees recovered against him in an action of trespass. Kittredge v. Sumner, 11 Pick, 50. This, therefore, could m no respect affect the sale.

¶6 Trustees discharged.

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