Sawyer v. Gerrish

Vikgin, J‘„ It would seem that if the defendant had sent his mare to the plaintiff for the purpose of raising a colt from the latter’s stallion, the defendant would have had, at common law, a lien upon her for the use of his horse, so long as he retained possession of the mare. Scarfe v. Morgan, 4 Mees. & W. 270; and perhaps upon the foal since partus sequitur ventrera, 2 Black. Com. 390. Allen v. Dinsmore, 55 Maine, 113. But no such question is raised here. Neither does the case present any question of common law lien upon the colt. The defendant on the contrary claims a contract-lien upon the colt alone, by virtue of the written contract between the parties entered into after the service rendered had been completed and the colt had a potential existence. It is well settled that the owner of personal property having a potential existence may sell it. Grantham v. Hawley, Hob. 132, 2 Kent’s Com. 468 and note g, 492 note 1, e. Farrar v. Smith, 64 Maine, 77. And within this principle, the owner of a mare may, during gestation, sell her future offspring, which will vest in the vendee when parturition takes place. McCarty v. Blevins, 5 Yerg. (Tenn.), 195. Doubtless the plaintiff, by his written contract with the defendant, intended to give him a claim of some kind upon the foal for the service of the defendant’s horse, “if the mare proved with foal,” of which she “was delivered the following season,” “the product of the service.” What was that intention as declared by the terms of the agreement ? The agreement should receive such a construction ut res valeat et non pereat, provided that construction be a reasonable one. The plaintiff owned the mare and the offspring in the absence of any salo. The defendant never owned either; but they were both the unincumbered property of the plaintiff’s intestate except [256] so far as the title of the colt, was affected by the written agreement of the parties thereto. No possession, even, was ever had of the colt, by the defendant,'until he took it a short time before the colt was replevied in 1878, about the time it was three years old. The case is, therefore, unlike that class of cases in which the owner parted with the possession of certain personal property, on a contract for sale, but retained the title until the price agreed on was paid. The real transaction was simply — the plaintiff’s intestate gave his promissory note to the defendant in consideration of the “use of” the defendant’s stallion, payable “twelve months after date” provided his mare proved with foal, and gave security on the foal, for payment. The condition of the promise has been fulfilled and we think the promise should be. Our opinion is that the contract was in the nature of a mortgage; and the case not distinguishable in principle from Oakes v. Moore, 24 Maine, 214, 220. The result is Plaintiff nonsuit. Judgment for return. Appleton, C. J., Barrows, 'Daneorth, Peters and Symonds, JJ., concurred.