Fitchburg Railroad v. Freeman

Dewey, J.

This action was tried by the court, the parties waiving a trial by jury under the. provisions of St. 1857, c. 267. In such case the facts found by the presiding judge are to have the same effect as if found by a jury, and no exceptions can be taken except on questions of law. The defendant relies upon various exceptions of this character.

1., He contends that his return on the writ on which the cars were attached was incompetent evidence in the present case. For the purposes for which it was admitted, and as showing that the defendant had attached them, and that they were left on the plaintiffs’ premises with his knowledge, the evidence was properly admitted.

2. The freight agents were competent witnesses to testify as to the value of such storage of cars. They might not be experts in the technical use of that term, but were, like many other witnesses, competent to testify to the value of storage. Vandine v. Burpee, 13 Met. 288.

3. The proposed testimony of the deputy sheriffs, as to attachments made by them on other occasions at the depots of the several railroads of the city, and that no charges for storage had been made, was properly rejected as irrelevant and incompetent.

4. Upon the general question of the liability of the defendant, we are of opinion that an officer by virtue of his attachment ot articles of personal property, unless he avails himself of the provisions of Rev. Sts. c. 90, § 33, as to the attachment of articles which by reason of their bulk or other cause cannot be immediately removed, is bound, while the attachment is in full effect, to keep the articles attached in his custody and under his supervision. He may require of the plaintiff in the action security for remuneration for all costs and charges incurred by him in the keeping of the same; but he must keep them, or abandon the attachment. If he abandons it, of course no liability would attach for their future storage. But in the present case no such fact exists; on the contrary, the officer continued his actual custody and possession of the cars by appointing an agent to act for him, in reference to that object, as keeper. The case is therefore to be considered the same as if the defendant had personally had the care and oversight of the cars, using the premises of the plaintiff as their place of storage. Having thus used the premises of the plaintiffs, the law implies a promise to pay them therefor what the same was reasonably worth.

It was contended on the part of the defendant that no liability could attach to the defendant until the plaintiffs had given him previous notice of their purpose to charge him with such liability in case he did not remove the articles. But in the opinion of the court this was not a case requiring such notice. The defendant well knew that he had the custody of the articles, and that whoever was furnishing storage for them furnished it for his benefit. It was rather the duty of the defendant to apply to the plaintiffs to keep the same gratuitously, or to do some act indicating his purpose not to.pay for the storage of the cars while under his custody, rather than that of the plaintiffs to give notice that they did not intend to perform gratuitous services for the benefit of the attaching officer, or of the party in whose service he was employed. The superior court therefore properly declined to adopt the propositions of the defendant’s counsel, so far as they related to the necessity of the plaintiffs giving notice to the defendant that he would be held liable for the storage of the cars unless he removed them, before he could be charged therefor.

Exceptions : verruled.