Odd Fellows Hall Ass'n v. McAllister

Holmes, J.

This is an action of replevin for certain furniture purchased with the proceeds of an Odd Fellows’ fair, and placed in the plaintiff’s building by the committee of the fair. The defendants are trustees of voluntary associations,—branches, we presume, of a larger voluntary association,—called encampments of Odd Fellows, who hired the rooms in which the furniture was, and removed it when their lease ended and they *295 moved elsewhere. The main question before us is whether there was any evidence on which the plaintiff was entitled to go to the jury.

If the case stopped with the foregoing facts, there could be no doubt that the plaintiff would be entitled to recover. Whatever may have been the old law, (Y. B. 20 Hen. VI. 18, pi. 8,) at the present day one who has possession of goods is entitled to keep them as against any one not having a better title, and therefore may maintain replevin for them, as he may trover. Pub. Sts. c. 184, § 10. Rich v. Ryder, 105 Mass. 306, 310 . Shaw v. Kaler, 106 Mass. 448, 449 . The plaintiff got possession of the furniture when it was placed in the plaintiff’s building, the more plainly that we must take it to have been placed there with the plaintiff’s knowledge. Much less than that has been held to constitute possession. Barher v. Bates, 13 Pick. 255 , 257, 261. McAvoy v. Medina, 11 Allen, 548 . Elwes v. Brigg Gas Co. 33 Ch. D. 562, 568. Regina v. Rowe, Bell C. C. 93. Y. B. 12 Hen. VIII. 9, pl. 2.

The question actually presented is whether the existence or effect of the plaintiff’s prior possession is taken away, as matter of law, by other facts not in controversy. We do not propose to discuss the evidence at length; it will be enough to state the grounds of our answer in a general way. The plaintiff, for the purpose of this case, does not claim the absolute ownership of the property. It seems clear that, whether there is a valid and binding trust or not, if the plaintiff should ignore the Odd Fellows altogether and should use the furniture for purposes of private gain wholly disconnected with that association, it would be departing from the understanding on which it received the goods. We are far from saying that there was not some ground for inferring that the gift, if it was a gift, was intended to benefit the particular bodies who were known to be intending to occupy the rooms where the furniture was placed, and who are represented by the defendants. They were the only encampments of Odd Fellows in Boston at the time. Or, if it be put another way, we do not say that the jury might not have inferred that the title remained in the same persons, whoever they might be, who owned the proceeds of the fair. No doubt the mode in which the money was raised, the circumstances of *296 the fair, and even the provision in the lease that all furniture on the premises should be at the sole risk of the lessees, lent some countenance to one or the other of these views. Probably, in fact, as usually happens in such cases, no one thought accurately about the question where the title would be after the furniture was placed in the building. But the one legal person to be seen in the midst of the voluntary groups surrounding it was the plaintiff. The committees and organization of the fair vanished as such with the occasion. The fair was not managed by the encampments whose trustees now claim -the property, although the managers of the fair were members of those encampments. The purposes of the fair would seem to have extended to the benefit of Odd Fellows outside of the then encampments in question. The plaintiff was assumed to be, and was, in entire accord with those purposes. Its stockholders were all Odd Fellows, and included a good'many of the executive committee of the fair. It seems to us at least a possible inference from the evidence that the legal title was vested in the plaintiff. See Brookline v. Sherman, 140 Mass. 1, 5 . Or if that be deemed inconsistent with the plaintiff’s admission, which we hardly think it to be, the jury were well warranted in finding that it was not intended to transfer to or to retain in the defendants the right to remove this property from the building in case they moved out of it. Certainly it would have surprised everybody if the encampments had undertaken to divide up the property among their members.

The question whether the rooms in question were or had been occupied by others than the Odd Fellows was rightly excluded. Even if the plaintiff had abused its honorary or equitable obligations, it would not have bettered the defendants’ case.

We cannot say that the judge erred in excluding evidence of sales by the lodges, independently of the plaintiff, of other furniture bought with money from the fair. It does not appear affirmatively that the furniture stood on the same footing as that in question, or that a collateral investigation would not have been necessary, which the judge in his discretion might exclude, and it would seem from the terms of the offer and the ruling that the corporation knew nothing of the sale, in which case the tenants could not justify one wrongful act by proving another.

*297 The description of the defendants as trustees in the writ was surplusage. There is no provision by which judgments and executions against trustees run against the trust estate in their hands, as in the case of executors and administrators. Even when they are entitled to indemnity from the trust fund, the judgment in an action at law is against them as individuals, whatever may be the doctrine of equity. Mason v. Pomeroy, 151 Mass. 164 . Therefore it makes no difference in an action against them whether they are trustees or not, and Yarrington v. Robinson, 141 Mass. 450 , has no application.

Exceptions overruled.