Demers v. Winslow
Demers v. Winslow
Opinion of the Court
This is an action of replevin to recover an automobile, by the mortgagee thereof; the mortgage is dated May 6,1924. The case was heard by a judge of the Superior Court without a jury upon an agreed statement of facts, in which it is stipulated that “all reasonable inferences may be drawn therefrom,” and that “Further material facts in this action are to be determined by the court on evidence to be submitted by the parties.”
The agreed facts are in substance that on December 4, 1924, the defendant, a constable, attached the automobile in question on a writ, wherein Wilfred J. Demers was named defendant, and made service of the writ upon him and notified him of the attachment. At the time of the service of the writ the defendant therein lived with the plaintiff in the present action and her husband, who were his parents, and service was made upon him at the plaintiff’s house. Thereafter, judgment by default was rendered against the said Demers and an execution issued, under which, on December 27, 1924, the defendant sold the automobile to one Horton for the sum of $60, Horton having no knowledge at that time of the existence of the mortgage. No notice of the sale was given either to the plaintiff or to her son. After purchasing the automobile Horton expended on it $61.60 in repairs. On March 10, 1925, the plaintiff made a demand on the defendant for the amount claimed by her to be due under the mortgage. Before the demand the defendant had learned that the automobile was mortgaged and he repurchased it from Horton.
The trial judge, in addition to the facts agreed upon, found that at the time of the service of the writ in the action against Wilfred Demers, the plaintiff was present and knew of the
The principal question is whether the demand by the plaintiff under G. L. c. 223, §§ 74, 75, was within a reasonable time. No time within which demand must be made is prescribed by the statute, but it must be within a reasonable time after the attachment. What is a reasonable time in this connection depends upon all the circumstances. • It has been held that, when the attaching creditor or the officer has received from the mortgagee actual knowledge of the mortgage and the extent of the lien acquired thereby, a demand made under the statute several weeks or even months after the attachment was sufficient (provided there was no intention on the part of the mortgagee to mislead), if the delay was in no way prejudicial to the attaching creditor or to the officer. Johnson v. Sumner, 1 Met. 172. Legate v. Potter, 1 Met. 325. Congress Investment Co. v. Reid, 205 Mass. 576.
It appears that the attachment was on December 4, 1924, in the presence of this plaintiff, and that she knew of the service; that she made no demand until March 10, 1925; that no reason is shown for the delay; that the defendant had no knowledge of the mortgage until after December 27, the date of the sale on execution; that the purchaser expended a substantial sum in repairing the machine in addition to the sum of $60 which he paid for it at the execution sale; that on learning of the sale the defendant repurchased the automobile from Horton. When the facts are in dispute what is a reasonable time is a question of fact, yet where all the facts are found by the court or admitted by the parties,
In view of the conclusion reached, it is unnecessary to deeidé whether the demand contained a sufficient statement of the amount due on the mortgage under the statute.
The exception to the refusal of the judge to make additional findings of fact cannot be sustained. It is settled that in an action at law the court is not required to make findings of fact even if requested by the parties tq do so. Lowell v. Bickford, 201 Mass. 543, 545. Davis v. Boston Elevated Railway, 235 Mass. 482, 494. Title Guaranty & Surety Co. v. Fred T. Ley & Co., Inc. 238 Mass. 113,120.
Exceptions overruled.
Reference
- Full Case Name
- Reparade Demers v. Herbert H. Winslow
- Cited By
- 3 cases
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- Published