
    
      Westefm, District
    
    No. 179902
    LUDLOW RUBBER COMPANY, INC. v. MACK TRUCK SALES OF SPRINGFIELD, INC.
    Argued: May 16, 1967
    Decided: July 14, 1967
    
      
      Present: Garvey, P.J., Moore, J., and Levine, J.
    Tried to: Walsh, J. in the District Court of Springfield. No. 179902.
   Moore, J.

This is an action of tort in which the plaintiff seeks to recover damages for eight truck tires and two tire tubes allegedly converted by the defendant.

There was evidence at the trial tending to show that the defendant had sold a truck to one Ralph Smith under a conditional sale agreement containing a clause that any accessories placed upon the property shall become a component part thereof. The financing statements, required by G.L. c. 106, $ 9-401 to perfect its security interest, were duly filed by the defendant corporation. Subsequently, the plaintiff sold to the father of said Smith the eight tires and two tubes, the subject matter of this action, under a conditional sale agreement which was never filed as required by said provisions of G.L. c. 106 in order to perfect its lien.

After the sale of the tires and tubes as aforesaid, they were attached to the truck sold by the defendant under its conditional sale agreement. Later, upon default in the payments under its conditional sales contract, the defendant took possession of the truck with the said tires and tubes attached thereto. Prior to the repossession of the truck by the defendant, Smith informed it that he had purchased the tires and tubes under a conditional sales agreement from the plaintiff and that they had not been fully paid for. At no time before the repossession and the sale of the truck with the tires and tubes attached, did the plaintiff give any written notice to the defendant of its claim on the tires. Neither did the plaintiff ever make any demand on the defendant for them.

At the time that the truck was repossessed and sold with the tires and tubes upon it, Smith was not in arrears in his payments under the conditional sales contract with the plaintiff for the purchase of the tires and tubes.

The above evidence does not seem to be controverted. The trial judge made special findings of fact as follows:

“Special Findings of Fact On July 2, 1963, the defendant executed a conditional sale with one, Balph E. Smith on a dump truck. Thereafter, Balph left the area and his father, Clarence Smith, made some of the payments on it. On June 10, 1964, Clarence bought eight tires and two tubes on conditional sale from the plaintiff and put them on the truck. The plaintiff did not record a financing statement.
In July of 1964, the truck account then being in default, the defendant repossessed it. At the time of repossession, the defendant was informed that the tires belonged to the plaintiff. On July 29, 1964, the defendant sold the truck with the plaintiff’s tires on it never having notified the plaintiff. ’ ’

The defendant filed eleven requests for rulings. The trial judge denied those number 3-11 inclusive as inapplicable or inconsistent with the facts found. Bequests for rulings numbered 4, 5, 6, 10 and 11 were as follows:

“4. Because the financing statements included “bodies, equipment and accessories” in addition to the truck, the tires installed on the truck after the financing statements were filed became subject to said perfected security interest at the time the tires were installed.

5. The plaintiff cannot recover because it has failed to perfect its security interest in the tires by filing a financing statement.

6. The plaintiff cannot recover because the Defendant’s duly perfected security interest in the tires installed on the truck is entitled to priority over the Plaintiff’s unperfected security interest.

10. If the defendant rightfully came into possession of the tires and his detention of the tires was not wrongful, then the plaintiff cannot maintain this action in the absence of a demand for a return of the tires and a refusal by the defendant.

11. Even if the plaintiff made a demand upon the defendant for a return of the tires it must also prove that at the time of the demand the defendant had control of the tires so that it was able to comply with the terms of the demand.”

The above mentioned requests were applicable to the facts found and that their denial constituted prejudicial error because first, the plaintiff’s security interest which had attached to the tires and tubes had not been perfected by filing as required by Gr.L. c. 106, § 9-401; whereas the defendants security interest had attached and had been perfected by the filing as required by said section. See G.L. c. 106, § 9-312 (5), G.L. c. 106, § 9-301 (1) (a).

Secondly, the plaintiff did not have possession or the right to the immediate possession of the tires and tubes as no default by Smith was shown to have existed under his conditional sale contract for the purchase of the tires and tubes at the time that the defendant repossessed and sold the truck under the conditional sale contract. Massachusetts Lubricant Corp. v. Socony-Vacuum Oil Co., 305 Mass. 269, 271.

Furthermore, the plaintiff never made any demand on the defendant for the tires or tubes which were at the time of the alleged conversion in the rightful possession of the defendant. See Marshall Vessels, Inc. v. John B. Wright, 331 Mass. 487.

Doherty and Murphy of Springfield, for the Plaintiff.

Arthur M. Marshall of Springfield for the Defendant.

There was prejudicial error in denying the defendant’s requests for rulings No. 4, 5, 6, 10 and 11 and the order should be:

Finding for the plaintiff vacated; finding for the defendant entered.  