Wells v. Connable
Massachusetts Supreme Judicial Court
Tout. The declaration contained two counts, as follows : “ 1st count. And the plaintiS says the defendant has converted to his own use one pair of oxen (stags) and one sorrel horse, the property of the plaintiS. “ 2d count.
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Tout. The declaration contained two counts, as follows : “ 1st count. And the plaintiS says the defendant has converted to his own use one pair of oxen (stags) and one sorrel horse, the property of the plaintiS. “ 2d count. And the plaintiS further says that on the day of he mortgaged one pair of oxen and one sorrel horse to the defendant, to secure a certain note of $76, and that said mortgage was duly recorded; that the defendant, without notice required by law and without any legal notices to the plaintiS, took and sold said property so mortgaged to him by the plaintiS, and thereby…
1Opinion of the CourtMorton, C. J.
We are of opinion that the second count of .the plaintiff’s declaration is a count in tort in the nature of trover. *515It alleges that the defendant “ has converted said property to his own use.” This allegation cannot be rejected as surplusage; it gives character to the count.
If the defendant had demurred to the count, he would have been met by the answer that it was a good count in trover. The count means the same as if it had been, in form, that the defendant has converted the property to his own use by a sale without notice to the plaintiff. The defendant has the right thus to interpret it,…
2Cases cited1 opinion
- Landon v. EmmonsMassachusetts Supreme Judicial Court · 1867
3Cited by8 opinions
- Donahue v. LeventhalMassachusetts Supreme Judicial Court · 1939
- Duggan v. WrightMassachusetts Supreme Judicial Court · 1892
- Dahill v. BookerMassachusetts Supreme Judicial Court · 1885
- Baird v. OlsheskiCalifornia Court of Appeal · 1929
- Harvey v. AnaconeSupreme Judicial Court of Maine · 1936
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