Lewis v. Webber

Colt, J. At the time the contract or receipt upon which this action is brought was executed the property therein described had been actually attached in a suit against Ahi Peace. It was then in charge of keepers appointed by the plaintiff, part of it at the mill of Ahi Peace & Co., where it was attached, and part at the depot to which it had been afterwards taken. Upon the giving of the receipt it was surrendered to the firm of Peace & Co., by the plaintiff’s written order on the keepers. The property attached was the property of the firm. There was evidence that the firm was not then able to pay the partnership debts, and that accordingly there-would be nothing left of its assets for the separate creditors of the individuals composing it. The firm was in fact declared bankrupt shortly after, but not till after this receipt had been given. The property was also subject to prior mortgages. The defence is that upon the facts agreed, and upon the facts testified to, which by the terms of the report are to be taken as true if competent, there was no valuable interest in the property which could be taken by a creditor of Ahi Peace. To which the plaintiff replies that the defendants are estopped from setting this up in their action on the contract. [454] The question of the defendants’ liability is to be settled by ascertaining from the terms of the contract, as applied to the circumstances under which it was executed, whether it is to be regarded as a contract of indemnity only, or as a receipt for specific articles actually attached with an agreement for their safe keeping and return. If it be the latter, then by repeated decisions the defendants are not estopped from showing in defence that the goods attached were all subject to prior mortgages, or to the prior right of the partnership creditors, and were or ought to have been applied to the payment of those debts. It was early held that if an officer had wrongfully attached the goods of a third person as the property of the debtor, and had bailed them, the bailee might protect himself by a delivery to the true owner, for by such a delivery the officer would be discharged from liability to the creditor, the debtor, and the real owner. Learned v. Bryant, 13 Mass. 224. And it is even held that the receiptor is not in all cases estopped to assert his own right of property in the goods attached, merely by reason of having executed an accountable receipt for it to the officer. To have that effect there must be the element of such conduct or such declarations as induced the officer to alter his condition or to forego some advantage which he might have had. Dewey v. Field, 4 Met. 381. Barron v. Cobleigh, 11 N. H. 557. We are of opinion that under the circumstances disclosed the defendants are not estopped under their receipt from setting up the defence relied on. It is not like a receipt, such as is often given purposely to avoid an attachment, without regard to whether the property recovered in it is attachable or not, or is even in existence. Such a contract is a mere substitute for the security by attachment, and is in effect but an agreement to indemnify the officer for not making an attachment. In such case, the receiptor assumes the absolute liability, and would be estopped to set up that the articles were not the property of the debtor. Thayer v. Hunt, 2 Allen, 449. In this case, an attachment of specific property was actually made and the goods placed under keepers. Upon the giving of the receipt, the defendants were entitled to its custody. We cannot discover anything in the terms of the contract itself, which requires us to regard it as an agreement to indemnify the sheriff. There is no express stipula tian in it that the. property belongs to the debtor, or is liable fol [455] bis debts, or that he has a good title. It is indeed valued at a fixed sum, and is described as free from any incumbrance; but this last clause, if it has any meaning, cannot by estoppel defeat the defendants’ right to show that the debtor had no title whatever to it, or that his interest has been absorbed by the creditors of the partnership. It is only a promise for the redelivery of the property, when called for, at such time and place as the bailee or promisee should appoint. The proceedings in bankruptcy against the firm of Peace & Co. defeated this attachment. The partnership creditors have a prior right to the partnership property, and the assignment in bankruptcy was a transfer by operation of law of the partnership property for the benefit of the partnership creditors. Allen v. Wells, 22 Pick. 450, 453. This is sufficient to show, without considering the mortgages, that the property has gone to the use of the persons entitled to it. Shumway v. Carpenter, 13 Allen, 68. Bursley v. Hamilton, 15 Pick. 40. Hayes v. Kyle, 8 Allen, 300. Penobscot Boom Corporation v. Wilkins, 27 Maine, 345. Judgment for defendants.