Mortgage, Of personal property. Attachment, Of mortgaged personal property. Notice.
In an action brought by a mortgagee of personal property against an officer who had attached the property under R.L.c. 167, §§ 69, 70, for its alleged conversion, it appeared that, on the day after the attachment, the plaintiff in attempting to make a demand in writing under § 70 had delivered to the defendant a notice which did not apply to the goods under attachment and stated an amount which was not a just and true account of the amount due under the mortgage, and that, on the twenty-ninth day after the attachment, the plaintiff had given the defendant a demand in writing stating a just and true account of the debt for which the property was liable to him, which the defendant contended was not given in time. There was evidence upon which the jury might have found that the plaintiff when he gave the first notice supposed that it was good, that the errors were made inadvertently and with no intention to mislead, that as soon as the plaintiff became aware that the notice was bad he took measures to give a second notice and that this was given with reasonable promptness after the plaintiff discovered the mistakes in the first notice, that the delay on the part of the plaintiff was with no intent to injure or prejudice the defendant in any way and was due entirely to inadvertence, and that no rights had intervened between the time of the attachment and the time of the second notice. There also was evidence of the plaintiff from which the jury might have found further that it was from the first the determination of the attaching creditor, under whose directions the defendant was acting in making the attachment, to hold the property "anyhow" whether there was any mortgage on it or not, and to take his chances of being compelled to pay the mortgage debt, that the value of the property was less than the amount of the mortgage and from this and other circumstances it might have been inferred that the delay was in no way prejudicial to the defendant and that he had done nothing which he would not have done if the notice had been given sooner. Held, that it could not have been ruled as matter of law that the notice was not given in time, and also that a verdict for the plaintiff was warranted.
HAMMOND, J.
Two notices were given, the first on September 24, 1907, and the second on October 22 of the same year. At the trial it appeared that the mortgage named in the first notice did not apply to the goods under attachment, and that the amount stated in the notice was not a just and true account of the amount due the mortgagee; and therefore, in consonance with the contention of the defendant and the concession of the plaintiff, the judge ruled that the notice was bad. The case was submitted to the jury upon the validity of the second notice.
Inasmuch as the plaintiff did not contend that the first notice was good, the objections to it are of importance only as they bear upon the validity of the second notice. And this bearing of the first notice upon the validity of the second arises not simply out of the fact that the first paper was a notice but from the fact that it was an act of the plaintiff. The cases cited by the defendant are cases where the plaintiff has relied only upon the notice alleged therein to have been invalid, and they have only the most remote bearing in a case like this, where the plaintiff does not rely upon the notice containing the defects but upon another and different one. It is well to have this distinction in mind in considering the validity of the second notice.
The objection urged against the validity of this notice is that it was not given in time. No time within which notice must be given is prescribed by the statute, but it must be given within a reasonable time after the attachment. Johnson v. Sumner, 1 Met. 172. "What is reasonable diligence will depend . . . upon the circumstances peculiar to each case. While, on the one hand, early knowledge, on the part of the mortgagee, that the property has been attached, will require more speedy assertion of his rights; so, on the other hand, if the attaching creditor, or the officer, has, through the mortgagee, though informally, actual knowledge of the mortgage, and the nature and extent of the lien acquired thereby, this fact will be entitled to some consideration on the question whether the mortgagee has lost his lien by unreasonable delay in making that formal demand and statement of his claim, which the statute requires." Dewey, J., in Legate v. Potter, 1 Met. 325, 326, 327.
The jury might have found upon the evidence that the plaintiff supposed that the first notice was good, that the errors were inadvertently made with no intention to mislead, that as soon as the plaintiff became aware that the notice was bad it took measures to give a second notice, and that this was given with reasonable promptitude after it discovered the mistakes in the first, that the delay on the part of the plaintiff was with no intent to injure or prejudice the defendant in any way, but was due entirely to inadvertence, and that no new rights had intervened between the attachment and the notice. And, if they believed the plaintiff's version of the telephonic conversation between its treasurer and the defendant, they might further have found that it was from the first the determination of the attaching creditor, in accordance with whose directions the defendant was acting, to hold the property "anyhow" whether there was any mortgage upon it or not, and take his chances of ever being required to pay the mortgage debt. And they might have found further, as a fair inference from these findings and from the other circumstances of the case, including the fact that the value of the property was less than the mortgage debt, that the delay was in no way prejudicial to the defendant, and that he did nothing which he would not have done had the notice been sooner given. Upon such findings it could not have been ruled as matter of law that the notice was not given in time. The second, third, fourth and fifth requests were therefore properly refused. Johnson v. Sumner, 1 Met. 172 (in which the case for the plaintiff was much weaker than in the present case). Legate v. Potter, 1 Met. 325. See also Clark v. Dearborn, 103 Mass. 335, and Rowley v. Rice, 10 Met. 7. The first request was sufficiently covered by the charge. The case was submitted to the jury under instructions favorable enough to the defendant.
Exceptions overruled.