GENEVA WAGON CO. v. SMITH

Conversion. Sale, Conditional. If a mortgagor of a stock in trade includes in the description of the property in the mortgage certain chattels of which the title is in an unpaid vendor under a contract of conditional sale, and acting as agent of the mortgagee retains the key of the building containing the mortgaged property both before and after a foreclosure sale of the property, this is a conversion by the mortgagee of the chattels wrongfully included and retained by his agent, for which the unpaid vendor may maintain an action of tort against him without a previous demand.

HAMMOND, J.

The evidence warranted a finding that the title to the wagons was to remain in the plaintiff until paid for in money, and that they never were so paid for; and therefore that the title never passed to the Hendersons.

Upon the uncontradicted evidence the wagons were included in the mortgage. The language of the mortgage included them, and Henderson, both as mortgagor and as agent for the defendant, the mortgagee, intended that they should be included.

After the mortgage Henderson had the key to the building in which the wagons were kept, and the judge properly could find upon the evidence that he acted as agent for the defendant, so far as respected her supposed rights as mortgagee, and kept them for her under a claim of right inconsistent with the rights of the plaintiff. This was a tortious act on the part of the defendant, and no demand was necessary before bringing the suit. Baker v. Lothrop, 155 Mass. 376, and cases cited. We see no error in the rulings given by the judge.

Exceptions overruled.